Carew, R. v [2015] EWCA Crim 437

[2015] EWCA Crim 437Case No 201404490 A6
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 24 February 2015
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE BURNETT
MR JUSTICE GILBART
HIS HONOUR JUDGE GRIFFITH-JONES
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
Between
R E G I N ACrownv
Between
KADELE EMMANUEL CAREW
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 7831 8838(Official Shorthand Writers to the Court)
Mr P Stanilas (Solicitor Advocate) appeared for Applicant
J U D G M E N T
[1]MR JUSTICE GILBART: This applicant was charged on an indictment containing two counts: the first was an allegation of robbery, contrary to section 8(1) of Theft Act 1968, and the second was an allegation of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861.[2]On 21 March 2014, in the Crown Court at Inner London, the applicant pleaded guilty on re-arraignment after the jury had been sworn and after the complainant had given evidence. On 29 April 2014, he was sentenced as follows: on count 2 (wounding with intent) he was sentenced to 9 years' detention in a young offender institution; on count 1 (robbery) he was sentenced to 8 years' detention concurrent and was ordered to pay a victim surcharge order.[3]He had been jointly charged and tried with a man called Jordan Kanon. On 21 March he too pleaded guilty on re-arraignment after the jury had been sworn on count 1 (robbery) and was sentenced to 4 years' imprisonment. As we shall come to, this court has reduced his sentence to one of 27 months' imprisonment.[4]This applicant renews his application for leave to appeal against sentence after refusal by the single judge. The facts are as follows. The complainant was with a friend in Leicester Square in London in the early hours of 25 October 2013 when they got talking to a group of five people. The applicant and Kanon were part of that group. The complainant and his friend were invited to a party in Brixton and agreed to go. They all took a bus to Brixton. Once in Brixton they started walking to the party when the applicant and Kanon said to the complainant, "Come with us we're gonna skin up". The complainant followed them down an alleyway. Kanon stood behind the complainant and the applicant stood in front of him and demanded his mobile phone. The complainant refused to hand it over. Kanon then grabbed the complainant from behind and pulled him to the ground. The applicant smashed a bottle and stabbed the jagged end into the complainant's left hand. He and Kanon then made off with the complainant's mobile phone. The complainant had a 3-inch wide and 1-inch long laceration to the back of his left hand. The police were summoned.[5]In sentencing the learned judge pointed out that both had pleaded not guilty and maintained those pleas in front of the jury right up until the close of the prosecution's case. The court was not able, in those circumstances, to give them any credit by way of discount and the length of the custodial sentences. That was not to say that the court did not recognise that to plead guilty, even in the circumstances that they both did, did not take some courage.[6]Given the fact that there is only one point in this application, which relates to whether or not the discount should have been made, it is not necessary to read the rest of the sentencing remarks, save that the judge considered that the total sentence should be one of 9 years' detention in a young offender institution. There was no discount from that. There was a pre-sentence report, to which it is not necessary to make reference.[7]The application before us is based on one principal ground. The Court of Appeal had heard an appeal relating to the sentence of Kanon. This court recognised that credit for Kanon's guilty plea should have been given by the sentencing judge, although the guilty plea came late in the proceedings. The principle of the appropriate credit being given applies to the applicant as it does to Kanon and, says Mr Stanislas, the applicant should have received the 10% discount on his guilty plea in principle and therefore reducing the sentence.[8]No case is argued before us about the appropriate starting point of his sentence. We refer to the definitive guideline of the Sentencing Council published in 2007 dealing with discounts for guilty pleas. In section D at paragraph 4.1 it is stated that:
"The level of reduction should be a proportion of the total sentence imposed, with the proportion calculated by reference to the circumstances in which the guilty plea was indicated, in particular the stage in the proceedings."
Reference is made in the guideline to section 144(2) of the Criminal Justice Act 2003. There is reference to the sliding scale which is reduced to a recommended one tenth for, in its words, a guilty plea entered at the "door of the court" or after the trial has begun. Section 5.1 to 5.9 set out reasons which may be given for withholding a reduction. None apply in this case.[9]The learned judge was required to give reasons if he chose to depart from the guideline. The reason given was that the change of plea came too late. We understand that in this court in the Kanon appeal the Aikens LJ said this:
"Should the judge have given credit for the very late guilty plea? We think that he should have done so, for the very reason that the judge identified at least. It takes some courage to plead guilty at a late stage and there should be encouragement to all offenders to recognise their offending and to own up to it. That, as [counsel] said in his submissions this morning, also avoids any miscarriage of justice. This should be encouraged by giving credit for a guilty plea even if that is entered at the eleventh hour or even later. In our judgment there should have been a 10% credit."
[10]This court respectfully agrees. We therefore consider that in the application of a discount the sentence on count 2 of 9 years should be reduced to 8 years, 1 month's detention in a young offender institution, and on count 1, 7 years, 2 months to run concurrently. Leave is granted. The appeal is allowed to that extent and a representation order is granted.

Cited in 1 later judgment