Jonsyn, R. v [2014] EWCA Crim 239

[2014] EWCA Crim 239Case No 201400341 A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of Justice, Strand London, WC2A 2LLDate Tuesday, 28th January 2014
B e f o r e:
LORD JUSTICE DAVIS
MR JUSTICE BLAKE
RECORDER OF WINCHESTER
HIS HONOUR JUDGE CUTLER
(Sitting as a Judge of the Court of Appeal Criminal Division)
Between
R E G I N ACrownTYRON JOSEPH JONSYNDefendant
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 R Nash appeared for ApplicantMr E Culver appeared for Crown

J U D G M E N T (As Approved by the Court

LORD JUSTICE DAVIS:

[1]On 12th September 2013, after changing his plea to one of guilt to an offence of assault occasioning actual bodily harm, the appellant was sentenced to a term of 46 weeks' detention in a young offender institution, he being aged 19.[2]The recorder, in passing sentence, directed that time spent on remand in custody in respect of that offence, calculated, as we are told, as 131 days, should count towards that sentence. The recorder had been assured by both advocates appearing before him, on behalf of the appellant and on behalf of the Crown respectively, that he had power so to direct. In fact, that time spent on remand in custody, purportedly since 3rd May 2013, had been in consequence of his detention pursuant to a sentence of 20 months' detention imposed on him on 30th April 2013 for another and entirely separate offence of grievous bodily harm to which he had pleaded guilty and in respect of which he had in fact been remanded in custody since 15th February 2013.[3]It is now common ground before us that the recorder had had no power to direct that time so spent on remand from 3rd May 2013 should count towards the sentence for the offence of assault occasioning actual bodily harm. This was by reason of the provisions of section 240ZA(4) of the Criminal Justice Act 2003, as amended by the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 with effect from 3rd December 2012.[4]The question arising is whether the custodial term of 46 weeks' detention as imposed by the recorder should be reduced so as to give effect to what is said to have been the recorder's overall intention and to the parties' mutual understanding as to the appellant's release date. We have, as indicated in the course of the hearing, granted the extension of time sought for this appeal and have granted leave to appeal.[5]Given the nature of the present grounds, it is necessary to set out the background facts only relatively briefly. They are these. At approximately 10.30 in the evening of 14th February 2013 the complainant and his wife were walking to their car at Wendover railway station. As they reached the car the appellant attacked the complainant. There was a verbal confrontation and the appellant then struck the complainant with a bottle. The complainant was hit once on the top of his head and twice in his face. The bottle did not break at that stage, but the appellant then dropped the bottle which did cause it to break. He then fled with another man.[6]It was the Crown's case that the appellant and the other man had initially intended to rob the complainant, although no such charge in that respect was ever pursued. Either there was an intent to rob or this was wholly gratuitous violence.[7]The complainant suffered facial injuries in the form of cuts and bruises, but fortunately nothing more serious.[8]The appellant was arrested the following day. He was interviewed and made no comment. Whilst in custody on that day, 15th February 2013, the appellant then punched a custody sergeant whilst in his cell, causing the sergeant to suffer a fractured cheekbone. The appellant subsequently pleaded guilty to inflicting grievous bodily harm in respect of that incident.[9]The chronology, shortly put, is thus as follows. On 14th February 2013 the appellant had committed the offence of assault occasioning actual bodily harm. On 15th February 2013 the appellant, having been arrested for the assault occasioning actual bodily harm offence, then committed the offence of inflicting grievous bodily harm with regard to the police sergeant. He was on that date remanded into custody in respect of the grievous bodily harm offence. On 30th April 2013 the appellant pleaded guilty in the Crown Court at Aylesbury on re-arraignment to the grievous bodily harm offence and was sentenced on that date to a term of 28 months' detention in a young offenders institution. On 3rd May 2013 the appellant was summonsed in respect of the offence of assault occasioning actual bodily harm and appeared at the Aylesbury Magistrates' Court. He was on that date remanded into custody in respect of the assault occasioning actual bodily harm offence. On 21st August 2013 the Court of Appeal quashed the appellant's sentence imposed for the offence of grievous bodily harm and substituted for it a sentence of 20 months' detention in a young offender institution. Then, having subsequently pleaded guilty in respect of the assault occasioning actual bodily harm offence, the appellant was sentenced on 12th September 2013 on that matter: that in fact being the day on which he had changed his plea to one of guilt.[10]On the face of it, and having regard to the relevant sentencing guidelines, there could be no complaint that the sentence of 46 weeks' detention which the Crown Court at Aylesbury (Mr Recorder Tillett QC) imposed on this appellant with regard to the offence of assault occasioning actual bodily harm. The incident had occurred at night time. It was very nasty, involving three blows with a weapon in the form of a bottle, the attack being, as we have indicated, either with a view to robbery or by way of gratuitous violence. It appears that the appellant had been drinking throughout the day - it seems that in fact that, at least at that time, he had a drink problem. Further, although still young, the appellant had a very poor record, which included previous convictions for violence. His principal mitigation could only be his relatively young age, coupled with his (admittedly late) plea. There was also material, by way of some mitigation, to show that he had had a difficult and troubled background.[11]As it happened, on 12th September 2013, which had been the day fixed for trial, the appellant, through his advocate, Mr Nash, had sought a Goodyear indication from the recorder. In the course of discussions in that regard there was some inconclusive comment (albeit, so far as both advocates' comments were concerned, potentially misleading comment) about whether or not credit could be given for time spent on remand in custody. In the result the recorder indicated that the maximum sentence that he would impose would be one of 12 months in custody consecutive to the sentence imposed in respect of the grievous bodily harm offence. It is common ground that a consecutive sentence was entirely appropriate here.[12]That indication having been given, there was then a further discussion between the recorder and the advocates appearing before him in the light of his Goodyear indication. We have a transcript of what was said in that regard. There was some discussion about totality. There was also discussion about whether or not time spent on remand in custody could count towards this sentence. During the course of those exchanges Mr Culver, appearing for the Crown, is recorded as saying this:
" -- I know there were submissions made previously, but just so that your Honour is clear: if the sentence is to be consecutive, my understanding is it would begin once the current sentence finishes, but it would then take account of any time that Mr Jonsyn has spent on remand. THE RECORDER: Well the time on remand won't be counted twice will it. MR CULVER: It will be counted against -- MR NASH: I don't think it will be. THE RECORDER: It will be counted, surely -- certainly it is counted in respect of the twenty month sentence for wounding."
Pausing there, the recorder's initial instincts were entirely right: he was concerned that otherwise there would, as it were, be double counting in favour of the appellant for time spent on remand. But the debate then went on as follows:
"MR NASH: It is, yes, but I don't think it is, because -- THE RECORDER: But it won't be counted again, will it, for this."
Mr Culver then intervened:
"MR CULVER: And it would be subject to any time he has spent on remand. THE RECORDER: For that offence. MR CULVER: For this offence. THE RECORDER: For this offence? MR CULVER: For this offence. THE RECORDER: Yes, I see. MR CULVER: Unless your Honour directs otherwise, and the normal course of events would be that it would count towards his eventual sentence, so it is a discretion for your Honour. THE RECORDER: Yes. MR NASH: Your Honour, I have had complications like this before, and actually the law has recently changed on this. I have had it so our release has come out the other way round, unless your Honour directs. I think if your Honour made it quite clear, and I would ask your Honour to direct that that time, if that is what your Honour wanted, to direct that the on-remand time counts, because otherwise it is not clear. If it doesn't need to be directed, then so be it. THE RECORDER: He has been on remand from -- MR NASH: He has been on remand since May. THE RECORDER: Since May, which is four months or so. MR NASH: Four months. Or you could obviously make the sentence shorter consecutive -- THE RECORDER: Yes. MR NASH: -- and then say the time is not to count. THE RECORDER: Yes, I am grateful. Thank you very much indeed."
[13]The recorder then proceeded to pass sentence. His sentencing remarks were brief, and none the worse for that. He indicated, consistently with his previous Goodyear indication, that his starting point was a sentence of 52 weeks, but that would be reduced by the late plea, which gave rise to a sentence of 46 weeks. He then said this:
"The sentence is forty-six weeks. You will serve half of that. It will be consecutive to the present term, but I am going to say that time spent in custody on remand will count in respect of it."
[14]It may be noted that in his sentencing remarks the recorder made no express reference to the sentencing guidelines. But in previous discussion he had given an indication that he thought that this offending was on the cusp, as it were, of category 1 and category 2.[15]At the time it appears that all concerned assumed that the effect of the sentence would be as stated by the recorder. But subsequently the prisons authorities have informed the legal team for the appellant that that is not so. The implications of section 240ZA(4) of the Criminal Justice Act 2003, as amended, were then appreciated. That subsection states as follows:
"If, on any day on which the offender was remanded in custody, the offender was also detained in connection with any other matter, that day is not to count as time served."
Subsection (10) makes specific that detention includes detention pursuant to any custodial sentence. Section 240ZA had been introduced, as was and is reasonably well known, precisely because of difficulties that had arisen by virtue of judges being required to give directions as to credit for time spent on remand in custody.[16]It follows, as is common ground before us, that by reason of these statutory provisions, the indication of the recorder as to credit for time spent on remand could not have the effect as indicated. It is, in consequence, now sought to be said on this appeal that in order to achieve the result which the recorder had intended and which he had indicated to the parties, and in order to meet what is said to be the legitimate expectation of the appellant, the custodial term should be reduced so as to achieve the intended result in terms of release. The calculations of the parties show that that would now connote a sentence of 60 days' detention.[17]In a recent skeleton argument submitted by Mr Culver on behalf of the prosecution, the prosecution has allied itself with these submissions made on behalf of the appellant. The prosecution accepts that all concerned at the time understood that the 131 days which the appellant had spent in custody from 3rd May 2013 would count towards and be deducted from the sentence of 46 weeks' detention imposed for the offence of assault occasioning actual bodily harm, bearing in mind that the appellant could on any view expect to be released at the half-way stage.[18]We have to say that we have had some unease at this contention jointly advanced. It is particularly unfortunate that this position should have resulted when the recorder's initial instincts were entirely right, but when both advocates -- and certainly Mr Nash -- then persuaded him away from them as though the position were plainly as being asserted by them. A short adjournment to research the point properly should have been suggested by counsel. But that did not happen. This was, regrettably, a significant mistake: albeit we were rather lamely told by Mr Nash and Mr Culver that at the time they were working to the 2013 edition of Archbold which had not, they said, included the updated provisions, and notwithstanding that those provisions had been introduced with effect from early December 2012. Moreover, one's unease has to be reflected by what seems to be the unexceptionable proposition that a sentence of 46 weeks' detention was entirely proper given the circumstances of this particular offending.[19]The position is that from the beginning of December 2012 courts have not been required to, and ordinarily should not, give any indication as to credit for time spent on remand. As stated in Archbold 2014 edition at paragraph 5-639, by reference to section 240ZA of the Criminal

Justice Act 2003 as amended:

"The proper approach will be for the court to decide on sentence without reference to any possible effect of administrative crediting of time on remand."
We agree with that statement as, generally speaking, the approach to be applied.[20]There is also to be borne in mind, in the context of the provisions relating to early release on licence, the principle that courts should ordinarily have no regard to the difference in release dates applicable to certain offences committed prior to April 2005 as compared to those committed after such date: see, for example, Round [2010] 2 Cr App R (S) 45. Moreover, it has been authoritatively established that where in such cases the court in passing sentence has mis-stated the effect of the potential release provisions, that is not of itself a ground for interfering with an otherwise proper custodial sentence: see Bright [2008] 2 Cr App R (S) 102 and Giga [2008] 2 Cr App R (S) 112. One can therefore see the argument that a like approach should be adopted with regard to legally erroneous mis-statements as to the crediting of time spent on remand.[21]However, we are just persuaded that that is not so here in the particular circumstances of this case. We cannot be uninfluenced by the fact that today Mr Culver for the Crown is in agreement with Mr Nash as to the proper disposal of this appeal. He is in agreement with Mr Nash as to the mutually understood effect of the recorder's remarks. Further, having read and re-read the transcript, we do not think that the recorder was simply mis-stating the legal position as to crediting time spent on remand with regard to this offence. We think that he was factoring that point in (as had been suggested to him by the advocates) with regard to the overall sentence and as part of the exercise of his discretion. That is borne out by the recorder using the words "I am going to say" that the time spent on remand in custody will count towards sentence: set in the context of the previous joint representations made to him by both advocates and which he had ultimately been prevailed upon to accept. Moreover, we also have to bear in mind that totality in this regard had also been argued before him.[22]Accordingly, we rather reluctantly allow this appeal. We are reluctant just because, as will have been gathered, we consider that the sentence of 46 weeks' detention was, on the face of it, an entirely proper one. Further, the misapprehension of the recorder that arose was through no fault of his, but was because he had been misinformed by the advocates before him. In the result, however, we quash the sentence of 46 weeks' detention and substitute for it a sentence of 60 days' detention. This will give effect to what the recorder had apparently contemplated and to what all parties had at the time understood. The appellant can count himself fortunate in the result.

LORD JUSTICE DAVIS: You are a very lucky young man. I hope you can take advantage of this and start behaving yourself, all right.

[24]Mr Nash, do you have a representation order?[25]MR NASH: my Lord, no.

LORD JUSTICE DAVIS: Even though this was referred?

[27]MR NASH: Well, my Lord, given the circumstances I was not going to ask for one. I accept it was my mistake.

LORD JUSTICE DAVIS: It was, yes. This case might assist other cases, Mr Nash. Your client's good fortune extends towards yourself, we will give you a representation order.

[29]MR NASH: I am very grateful.

LORD JUSTICE DAVIS: Mr Culver, you get paid anyway.

[31]Thank you both very much.[32]We do accept your apologies for what happened. We do understand that these things happen, it is just that they should not.