Hester-Wox, R. v [2016] EWCA Crim 1397

[2016] EWCA Crim 1397

Case No 20163357 A3

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Wednesday 31 August 2016

Strand

London, WC2A 2LL

B e f o r e:

MRS JUSTICE THIRLWALL DBE

MRS JUSTICE ELISABETH LAING DBE

Between

R E G I N ACrown

Between

JACK HESTER-WOX

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Miss E Fry appeared for Applicant

for The Crown did not appear and was not represented

J U D G M E N T (Approved)

[1]MRS JUSTICE ELISABETH LAING: This is an application for leave to appeal against sentence which has been referred to the full court by the Registrar, whose industry detected several anomalies in the sentence passed by the judge. We are grateful to the Registrar for his alertness in spotting these anomalies and in referring them to the full court. We grant leave.

[2]The appellant was represented today by Miss Fry. She drafted amended grounds of appeal dated 29th August 2016 and has argued several points in support of those amended grounds. She told us that she had begun to draft those grounds before she received the summary from the Criminal Appeal Office and we are grateful to her for her focused and helpful arguments.

[3]On 31st May 2016 the appellant pleaded guilty before the magistrates to a total of nine different summary offences which had been committed on 8th December 2015, 15th March, 25th May and 31st May 2016. The appellant was committed for sentence pursuant to section 6 of the Powers of Criminal Courts (Sentencing) Act 2000 (‘the 2000 Act’) in respect of all of those summary offences. We will describe those in a moment.

[4]Those convictions meant that the appellant had been convicted of a further offence during the operational period of a suspended sentence passed by the Crown Court. The magistrates committed that matter to the Crown Court to be dealt with pursuant to paragraph 11(2) of schedule 12 to the Criminal Justice Act 2003 ("the 2003 Act").

[5]On 21st June 2016 in the Crown Court at York, His Honour Judge Batty sentenced the appellant in respect of all those matters. First of all, the Judge activated in full the suspended sentence of eight months' imprisonment which had been imposed on 22nd March 2016 in the Crown Court at York for two offences of common assault (we will refer to that indictment as ‘T315’).

[6]All the offences which the magistrates had committed for sentence were sentenced in the following way. For S20160162 (which we will refer to as ‘S162’) offences 1 to 3, which were offences of sending offensive communications, the judge passed sentences of four months' imprisonment concurrent on each, but consecutive to the eight months activated on T315.

[7]For S162, offence 4, an offence of failure to surrender to custody on 25th May 2016, the judge passed a two-month concurrent sentence of imprisonment.

[8]For offence 1 on S20160163 (which we will refer to as S163), an offence of using threatening behaviour, the judge passed a sentence of two months' imprisonment concurrent to the sentence for offence 2. For offence 2 on S163, an offence of common assault, the judge passed a sentence of two months' imprisonment consecutive to the sentence on S162. For offence 3 on S163, an offence of failing to surrender to custody on 4th December 2015, the judge passed a sentence of two months' imprisonment concurrent. For offence 4 on S163, an offence of failing to surrender to custody on 15th March 2016, the judge passed a further two-month sentence of imprisonment, concurrent. For offence 1 on S20160164 (which we will refer to as ‘S164’), an offence of obstructing a Police Constable, the judge passed a sentence of four months' imprisonment consecutive.

[9]The total sentence was therefore one of 18 months' imprisonment. A victim surcharge order of £140 was made. The judge also made a restraining order under section 5 of the Protection from Harassment Act 1997 which was to last until further order.

[10]The facts were that on 1st May 2015 the appellant went to York County Court to support his then partner, Jade Lamb. She was attending court for care proceedings in respect of a child she had had with a previous partner, Adrian Fayter. Adrian Fayter was also present. Also present to support the appellant was the appellant's brother, Martin Hester-Wox. During the luncheon adjournment Adrian Fayter was standing on the steps to the court smoking a cigarette. Jade Lamb, the appellant and his brother passed by and went around the corner where they were seen hanging around before the brothers doubled back and returned to the steps. Two members of the public and a court security guard, Phillip Smith said they saw the brothers attack or engage with a man who did not fight back and covered his head. Mr Smith put himself between Mr Fayter and the two brothers and was hit with a heavy blow to his back by the appellant causing him instant pain and winding him. A lawyer arrived on the steps and said that the police had been called. At that point the brothers made off. Mr Smith was in pain. He found he was not able to do his duties and was sent home.

[11]The prosecution accepted that the appellant had not assaulted Mr Fayter, but accepted a plea to an offence contrary to section 4 of the Public Order Act and common assault on Mr Smith. Those are offences 1 and 2 on S163.

[12]In interview the appellant and his brother gave similar accounts. They said Mr Fayter had called the appellant and/or his brother a "paedo" and had offered a punch towards his brother. The appellant said he had responded in self-defence and had tried to break things up. He pleaded not guilty on his first appearance but pleaded guilty on the day of the trial on 5th March 2016. During the proceedings for these offences the appellant also failed to surrender to the Magistrates' Court on 4th December 2015, and was late surrendering for trial on 15th March 2016. He pleaded guilty to both those offences and those were offences 3 and 4 on S163.

[13]Between those events in May 2015 and April 2016 the appellant and Jade Lamb had had a child together who was born on 1st March 2016. After the child was born, Jade Lamb stayed with her maternal grandparents. The child was the subject of a child protection plan and a no contact order was made in respect of the appellant and the child because of the appellant's erratic and aggressive behaviour. He had at that point fallen out with Jade Lamb. He was due to have a mental health assessment in relation to that behaviour and in relation to his ongoing contact prospects with the child.

[14]On 11th April 2016 the appellant made a call from his mobile phone at 8.50 pm to the grandparents' house. The grandfather Brian Lamb answered the call and the appellant told him that he had arranged to meet Jade. When the appellant was told that they would not be meeting, the appellant replied he was going to kill Jade and would kill Brian Lamb first, as he was going to die anyway and that would make it easier -- Mr Brian Lamb at that stage was suffering from a terminal illness. The appellant also threatened to kill the grandmother. These comments caused a great deal of distress both to Jade Lamb and to Mr Lamb. They took the comments seriously and immediately made a 999 call to the police.

[15]Later the same evening, North Yorkshire Police received a telephone call from the appellant who said that he wanted someone to protect Jade Lamb and Adrian Fayter because he said he was "going mental" and no one would section him off and he was going to kill them that night. He said he was then wanted on a warrant. He was in York and wanted to be sectioned but no one was listening to him. The ambulance service called the police two minutes later, saying that they had also received a call from the appellant in which he had said that he was hearing voices in his head and those voices were telling him to kill Jade Lamb. The appellant was arrested and in interview said it was a cry for help because he had wanted to be sectioned. Those were offences 1 to 3 on S162.

[16]He was bailed to appear before the Magistrates' Court on 24th May 2016 but again he failed to surrender on that day. That was offence 4 on S162.

[17]The police were told about the appellant's whereabouts and on 25th May 2016 they went to an address where he was believed to be in order to execute a warrant. Officers attending the address heard someone moving around in the loft space. The police made several attempts to coax the appellant out. Initially they met with no response and he seemed to have blocked the entrance with heavy objects. The police eventually managed to get in. The appellant was restrained and then arrested. He became aggressive, shouting "Fuck you, smelly bastard, I will fuck your mother" to the officer who was arresting him. That was the offence on S164.

[18]As a result of some of those offences the appellant was in breach of a suspended sentence order which had been imposed on 26th March 2016, as we have already mentioned. As we have already said, that order was for a total of eight months' imprisonment suspended for two years with requirements for two offences of common assault, four months imprisonment having been passed in respect of each offence consecutive. Prosecuting counsel had been told by the Probation Service that the appellant had not complied with any of the requirements, had failed to attend any appointments, had breached his curfew and that if it were not for the further offending the Probation Service would have breached the appellant in any event. When asked to explain his breach of the order, the appellant told the Probation Service that "I couldn't be arsed with it and I have taken off my ankle anyway." That was offence 5 on S162.

[19]The facts in relation to the offences of common assault for which the suspended sentences were imposed were that on 10th May 2015, at about 1 am in the morning, four people were leaving a night club in York. The appellant and his co-defendant Dean Barker began shouting at the group and Barker, who it was accepted was the main antagonist, approached the group and started throwing punches. The appellant then became involved and began assaulting two friends who tried to intervene, Lee and Ryan Ellerby. Both of those victims received minor bruising and swelling to their faces and heads. The appellant was arrested and said he had acted in self-defence. His nose had been bleeding. Those were counts 4 and 5 on indictment T315.

[20]The appellant was 21 years old when he was sentenced. He was born on 16th September 1984. With the exception of the offences which were currently before the court, he had 19 previous convictions and/or findings for 31 separate offences which had been committed between 15th July 2008 (when he was 13 years old) and 8th September 2014 (when he was 19). His relevant convictions included two for resisting or obstructing a Police Constable, an offence of battery, an offence of failing to surrender, in the region of five offence for failing to comply with previous court orders and an offence of racially aggravated harassment. He also had previous convictions for dwelling-house burglary, theft, handling, aggravated vehicle taking, criminal damage and possession of a knife.

[21]There was a pre-sentence report before the judge dated 17th March 2016. It only related to the two common assaults which had been committed in May 2015 for which the appellant had received the suspended sentence on 26th March 2016 and is therefore of limited relevance. That report assessed the appellant as posing a low risk of serious harm, but a continuing medium risk of harm to the public. The likelihood of re-conviction was at that stage assessed as low.

[22]Before sentencing the appellant, the judge asked counsel for help with his sentencing powers and we regret to say that the help which he did receive from counsel was very limited. On any view it was insufficient to guide him through the thicket of relevant restrictions.

[23]Sentencing the appellant, the judge said that the appellant was 21. He had a very poor criminal record for offences of resisting police officers, violence and dwelling-house burglary. The judge referred to the fact that probably against his own better judgment he had on 22nd March imposed a suspended sentence on the appellant for his involvement in drunken acts of violence outside a nightclub. The sentence had been suspended because the appellant had not been the most heavily involved in the violence. The judge had imposed requirements of unpaid work and curfew. The appellant had not done a single hour of unpaid work, he had violated the curfew by removing his ankle bracelet and had failed to engage in any way with the order. The judge mentioned that even without committing the further offences the Probation Service would have taken steps to have that order revoked because of the appellant's failure to comply with it. The judge said that the appellant was to be dealt with in relation to an offence of public order and an offence of common assault. Those were serious matters because they took place on the steps of York County Court and all those involved were involved in proceedings before that court. The serious aspect was that the security guard worked at the court and seeing the disturbance, doing no more than his public duty, had been struck a heavy blow by the appellant on his back which caused him pain as a result of which he had had to leave work. The reason for the delay in the prosecution was that the appellant had pleaded not guilty. It was only on 15th March 2016 that he had pleaded guilty on the day listed for trial. Those offences were not a breach of the suspended sentence order.

[24]The appellant fell to be dealt with for two offences of failing to surrender to custody and also for offensive communications committed on 11th April 2016 - all breaches of the suspended sentence. The judge narrated the facts in relation to the offensive communications. He referred to the most blood-curdling threats made by the appellant and to the fact that those receiving the threats had been so disturbed that they had immediately telephoned the police. The judge then referred to the appellant's call to the emergency services. The judge said he was not sure about whether the appellant needed sectioning but he did know that there was absolutely no justification for the disgraceful threats that the appellant had made earlier that evening.

[25]To cap it all the judge said there was obstruction of the police when the appellant had barricaded himself in the loft space of his partner's house. The stand off had taken over half an hour. The appellant had been extremely aggressive and had resisted the police, obstructed them and used vile language insulting them when they tried to arrest him.

[26]The judge mentioned the principle of totality and said he had to give the appellant appropriate credit for his guilty pleas where those had been tendered at an early opportunity. The judge saw no reason why the suspended sentence should not be activated in full. The appellant had simply failed to comply with any aspect of it. The starting point was therefore eight months in respect of the suspended sentence. In addition in respect of the communications offences, giving credit for the pleas of guilty there would be a sentence of four months' imprisonment for each offence but consecutive to the eight months. In relation to obstructing the police officer, again in breach of the suspended sentence, and the judge said a very unpleasant offence, there would be a sentence of four months' imprisonment again consecutive.

[27]In relation to the offences on the steps of York County Court the judge said that justice would be properly served by a relatively modest sentence which would be one of two months' imprisonment concurrent on each offence, but again consecutive to the other sentences. The judge passed concurrent sentences of two months' imprisonment in relation to the two offences of failing to surrender to bail.

[28]The original grounds of appeal not drafted by Miss Fryattacked the overall length of the sentence, but did not mention or engage with the points which, as we have already said, the Registrar has noticed in relation to these sentences and which are the reason why the Registrar referred this case to the full court.

[29]The first point made by the Registrar is that the single offence on S164 of obstructing a Police Constable contrary to section 89(2) of the Police Act 1996 carried a maximum sentence of one month's imprisonment. The Registrar opined, and we agree, that the sentence of four months' imprisonment which was passed by the judge in relation to that offence was unlawful. We quash the sentence of four months' imprisonment for that offence and substitute for it a sentence of one month's imprisonment to run concurrently with the other sentences.

[30]The second point made by the Registrar in the reference to the full court is that with the exception of the committal for breach of the suspended sentence order made by the Crown Court, all the other offences that were dealt with by the sentencing judge had been committed pursuant to section 6 of the 2000 Act. All those offences were triable summarily only. The maximum sentence for all those summary offences combined could not exceed six months' imprisonment in total, as the Crown Court’s sentencing powers were restricted to dealing with the appellant as if he had been dealt with in the Magistrates' Court and where a Magistrates' Court imposes two or more sentences of imprisonment to run consecutively to summary offences, the aggregate of all such terms cannot exceed six months.

[31]As the Registrar points out, the total term imposed for all the summary only matters committed for sentence under section 6 of the 2000 Act was 10 months' imprisonment which, the Registrar opines, appears to be unlawful. We agree.

[32]Miss Fry in her submissions makes a further point which is that she says inadequate credit was given by the learned judge for the guilty pleas where those guilty pleas were tendered at an appropriate time. In light of the large number of offences for which the judge was sentencing the appellant, it seems to us that this point goes nowhere. We order that all sentences passed on S163 should run concurrently to the sentences passed on S162.

[33]The Registrar makes a further point that the total period of 10 months was ordered to run consecutively to the eight months which the judge activated for breaching the earlier suspended sentence order and that those sentences have been passed for summary only offences.

[34]So far as the suspended sentence order was concerned, the Registrar draws attention to the fact that the original sentence comprised two consecutive terms of four months for the two offences of common assault which were counts 4 and 5 on T315. The Registrar points out that the two offences of common assault were validly included in the indictment pursuant to section 40 of the Criminal Justice Act 1988 ("the 1988 Act"). However, the Registrar goes on to point out that no evidence had been offered against the appellant on count 3 on that indictment. As a consequence the only offences on the indictment for which the appellant could be sentenced were counts 4 and 5. Those were both summary-only offences of common assault. Pursuant to section 40(2) of the 1988 Act the Crown Court could only deal with the appellant in the manner in which a Magistrates' Court could have dealt with him. Therefore, the Registrar opines the total sentence which the Crown Court could have imposed originally was six months for the two summary offences. The Registrar goes on that it appears to him that the original sentence of eight months' imprisonment suspended was also unlawful. We agree.

[35]The Registrar suggests that to save any further delay that would be entailed in making an application for leave to appeal against that earlier sentence, we should consider reducing the period of activation of the suspended sentence to a maximum of six months' imprisonment on the basis that the maximum sentence available was originally six months rather than the eight months which was actually passed by the Crown Court. As the Registrar points out, that would deal with the matter without further delay and without any further prejudice to the appellant. We agree with that suggested course of action. Accordingly, we quash the sentence of eight months' imprisonment and substitute for it a sentence of six months' imprisonment.

[36]There is then an issue about whether that sentence of six months' imprisonment is to be consecutive or concurrent to the sentence of six months' imprisonment which was the sentence which could have been lawfully passed for the summary only offences which were committed to the Crown Court by the Magistrates. The Registrar has suggested that the effect of the limitation in section 133(1) of the Magistrates' Courts Act 1980 ("the 1980 Act") is that the maximum sentence which could possibly have been passed for all the offences in this case was one of six months' imprisonment if all the relevant provisions had been brought to the court's attention. That suggestion is supported by Miss Fry in her amended grounds of appeal and was supported by her in her oral argument this morning. The question therefore is whether we agree with the Registrar's analysis and with the submissions made by Miss Fry this morning.

[37]It seems to us in this context that the decision of this court in R v Chamberlain

(1992) 13 Cr.App.R (S) 525

is relevant. The material legislation was in one respect the same as it is today, in other words section 133 of the 1980 Act was the same when Chamberlain was decided as it is today. That provision reads as follows:

"The Magistrates' Court imposing imprisonment or detention in a young offender institution on any person may order that the term of imprisonment or detention in a young offender institution shall commence on the expiration of any other term of imprisonment or detention in a young offender institution imposed by that or any other court; but where a Magistrates' Court imposes two or more terms of imprisonment or detention in a young offender institution to run consecutively the aggregate of such terms shall not, subject to the provisions of this section, exceed 6 months."

A similar issue arose in Chamberlain as arises here. The court said at the foot of page 527:

"The first question which we have to decide is whether the provisions of section 133 apply to the activation of a suspended sentence so as to confine the power of the sentencing court in such cases to the stated maxima. We are of the opinion that the restriction does not apply in such cases. The references to 'terms' in subsection (2) is a reference to imposition of imprisonment or detention as provided in subsection (1). In section 150(1) of the Act the words 'impose imprisonment' used in section 133(1) and (2) are defined as meaning 'pass a sentence of imprisonment ...' In our view the implementation of a suspended sentence does not involve the imposition of a sentence of imprisonment. The sentence was imposed when the original suspended sentence was passed. When the suspended sentences were activated in the present case the judge did not pass a sentence of imprisonment: he 'dealt with' the appellant in accordance with section 24 of the Powers of Criminal Courts Act 1973, which provides: '(1) An offender may be dealt with in respect of a suspended sentence by the Crown Court ... (2) Where an offender is convicted by a magistrates court of an offence punishable with imprisonment and the court is satisfied that the offence was committed during the operational period of a suspended sentence passed by the Crown Court - (a) the court may, if it thinks fit, commit him in custody or on bail to the Crown Court ...' The effect of the legislation in the present case is that when the appellant admitted being in breach of the suspended sentences passed in the Crown Court at York, the justices sent him to the Crown Court to be dealt with for breach of the terms of a sentence already passed."

This court went on to refer to previous decisions of this court in which similar conclusions had been reached and to the views expressed in the leading textbooks at that time which supported the view which the court took.

[38]It seems to us that the reasoning of this court in Chamberlain applies just as much today as it did at the time when Chamberlain was decided in December 1991. First of all, the terms of section 133 of the 1980 Act have not changed. Secondly, although some of the underlying legislation in relation to suspended sentences has changed, the current regime for activating suspended sentences which is set out in schedule 12 to the 2003 Act, just as the relevant legislation did in 1991, uses the phrase "deal with". We see no reason to doubt the soundness of the reasoning in Chamberlain and propose to follow it. We should deal, however, with one point which was made by Miss Fry. She relied on paragraph 9(3) of schedule 12 to the 2003 Act, which reads as follows:

"For the purpose of any enactment conferring rights of appeal in criminal cases, any order made by the court under paragraph 8(2)(a) or (b) is to be treated as a sentence passed on the offender by that court for the offence for which the suspended sentence was passed."

We do not consider that the terms of paragraph 9(3) alter our provisional conclusion. The purpose of paragraph 9(3), which is clear from its opening words, "for the purpose of any enactment conferring rights of appeal in criminal cases" is to ensure that the orders referred to in paragraph 9(3) generate rights of appeal. The provision has no other purpose in our judgment and is not relevant to the construction argument about whether or not the powers of the Crown Court were limited in the way in which the Registrar and Miss Fry contend.

[39]The upshot of this is that in our judgment the judge would have been entitled to order that the suspended sentence as reduced by us should be activated to run consecutively to the sentences which he passed in relation to the summary only offences.

[40]Our conclusions are as follows. The appeal succeeds to the following extent: 1. We quash the sentence of four months' imprisonment passed on offence 1 on S164. We substitute for it a sentence of one month's imprisonment to run concurrently with the sentences passed on S163. 2. We order that all the sentences passed on S163 should run concurrently with each other and concurrently with the sentences passed on S164 and with the sentences passed on S162. 3. We quash the suspended sentence order of eight months' imprisonment made on 26th March 2016 and substitute for it a suspended sentence of six months' imprisonment. The judge's decision to activate the suspended sentence (as reduced by us to one of six months' imprisonment) and that the sentence as activated and reduced should run consecutively to the other sentences, are not affected. 4. In relation to the sentences that were passed by the judge for the summary offences on S162, we order that the sentence of two months' imprisonment passed for offence 4 should run consecutively rather than concurrently to the other sentences passed for the offences on S162.

[41]The overall result therefore is that the total sentence passed on the appellant is reduced to one of 12 months' imprisonment. To clarify, the restraining order remains in place.

[42]MRS JUSTICE THIRLWALL: The victim surcharge order of £140 was unlawful. Miss Fry, I think the best thing we should do, given that there has been a certain amount of shifting sands on this case, is if we give you two days to send us in writing a note in respect of the victim surcharge and then we can finalise the order once we have received that. We do not need to hear from you again. The Court decided, after delivering the judgment, that the appropriate victim surcharge order was £80.