McDonagh, R. v [2017] EWCA Crim 2193

[2017] EWCA Crim 2193Case No 201700231/A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 28 September 2017
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE BEAN
MR JUSTICE SPENCER
MR JUSTICE GILBART
Between
R E G I N ACrownv
Between
FRANCY MCDONAGH
Computer Aided Transcript of the Stenograph Notes ofWordWave International Ltd trading as DTI,165 Street London EC4A 2DY,Tel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr T Burke QC appeared for Appellant
J U D G M E N T (Approved)
[1]MR JUSTICE SPENCER: On 13th December 2016 in the Crown Court at Aylesbury, the appellant, who is now 28 years of age, was sentenced by His Honour Judge Cole to a term of 54 months' imprisonment for an offence of section 18 wounding with intent, to which he had pleaded guilty shortly before trial. There is no complaint about that sentence. The judge also activated in full, and consecutively, a suspended sentence of 18 months' imprisonment imposed on 15th February 2016 in the Crown Court at Leicester for a very similar offence of section 20 wounding. The appeal is confined to the issue of whether the judge should have activated the sentence in full, bearing in mind that the appellant had complied with the unpaid work requirement of the suspended sentence order and had performed all of the 180 hours work required of him. It is contended that this was a fundamental error and that the resulting sentence of six years in total was therefore manifestly excessive. The appeal is brought by leave of the single judge.[2]The offence for which the suspended sentence was imposed was committed in a public house in Leicester on 25th May 2015. The appellant lives with his wife and children in Newport, Gwent but there was a social gathering in Leicester of members of his extended family, including his cousin Tom McDonagh. Late in the evening an argument developed between the appellant and his cousin. The appellant struck his cousin a blow to the left side of the face with a glass object of some kind. There was a second blow to the top of his head, although it is unclear who struck that. The glassing to the cheek by the appellant caused a deep cut requiring nine stitches. The appellant was charged with section 18 wounding with intent, but the prosecution accepted his plea of guilty to the lesser offence of section 20 wounding. As we have indicated, the sentence was 18 months' imprisonment suspended for two years, with an unpaid work requirement of 180 hours. There was also a restraining order prohibiting him from contacting his cousin directly or indirectly. There was an order for compensation in the sum of £1,750 payable within three months. That sum was duly paid in full. The unpaid work had to be completed within 12 months but to his credit the appellant completed the work within two months, by 11th April 2016.[3]Despite this encouraging compliance with the orders of the court, the appellant soon breached the suspended sentence by committing a further offence of glassing in a public house, this time a section 18 offence. It took place on 10th May 2016, just three months after the suspended sentence had been imposed. This time the offence was committed at the Beaconsfield Arms Public House in High Wycombe. Again it seems there was a large gathering of friends and family. The appellant and the victim, Jason Stokes had arrived there in the afternoon. All was going well until around 11.30 pm when there was an extensive fight between the appellant and Stokes which sprawled over different parts of the public house. It was all captured on CCTV. At a stage when it appeared the fight was over, the appellant took a glass from the bar and attacked Stokes with it. Stokes was trying to leave the public house at that point by the emergency exit with his wife. The appellant struck him with the glass and punched him. It seems the fighting continued even after that. The appellant and Stokes had to be separated. At one stage the appellant was on the floor and was kicked and punched by Stokes who himself was eventually removed by others.[4]Stokes sustained a fracture to his little finger, cuts to both sides of the head and a deep laceration to his forehead. A CT scan showed foreign bodies in the soft tissue to the left side of the frontal bone, believed to be glass. Although Stokes initially agreed to assist the police, he changed his mind and was not supportive of the prosecution. Indeed he wrote a letter to the judge saying that he bore the appellant no ill will and that it had been a drunken argument between friends that had got out of hand.[5]Apart from the suspended sentence, the appellant had a previous conviction for assaulting a police officer. That offence was in November 2015 and was dealt with by the magistrates in Hampshire on 22nd January 2016 by way of an order for costs and compensation.[6]By the time the appellant was sentenced by Judge Cole on 13th December 2016 he had spent several months in custody on remand. There was a wealth of material to demonstrate that he had made good progress and was regarded as a model prisoner. There were also strong supportive references from members of his family and others who spoke highly of his voluntary work. There was a pre-sentence report. The appellant acknowledged that the trigger for the offence had been his consumption of alcohol. He could recall very little of the incident. The author of the report was of the view that the appellant had failed to identify the seriousness of his actions and considered that he posed a high risk of further offending as he lacked insight into his violent behaviour which was unpredictable and impulsive when he was binge-drinking. The appellant lived with his wife and four dependent children, one of whom had special needs and was particularly close to the appellant and reliant upon him.[7]We note that at the conclusion of the prosecution's opening of the facts, when prosecuting counsel had outlined the circumstances of the suspended sentence offence,

the judge said:

"…and ... just to spell it out -- suspended sentence must be triggered in full and consecutive to any sentence I pass unless it would be unjust not to."
To this prosecuting counsel replied: "Absolutely." As we shall explain, this was not in fact a correct statement of the position. There was a wider discretion not to activate the suspended sentence in full.[8]In passing sentence, the judge observed that the appellant was warned when he received the suspended sentence that if he re-offended during the period of its operation he would the liable to serve the whole of the sentence. The judge set out the facts of the present offence, which he described from his viewing of the CCTV as "beyond any argument" a premeditated repeated attack on Stokes culminating in smashing a glass into his head and having to be pulled away by several people. The judge then said this:
"The fact remains that I must activate the suspended sentence in full and that will be consecutive, it certainly would not be unjust to do so; you committed the same kind of offence, but even more seriously, in blatant disregard of the suspended sentence."
As he was obliged to do, the judge considered the issue of dangerousness and the possibility of an extended sentence, but in the event he decided that it was possible to deal with the matter by a determinate sentence. It was common ground that the offence was Category 2 under the Sentencing Council Guideline so the starting point was six years and the range five to nine years' custody. The judge acknowledged the personal mitigation and the fact that despite the appalling offending and re-offending there was shown to be another side of the appellant. He was a dedicated family man. Taking into account how well he was doing in custody, the judge said he was prepared unusually to take the sentence to the bottom of the category range, that is to say five years. For his guilty plea on the day of trial he would be credited 10 per cent, reducing the sentence for the current offence to four-and-a-half years. The judge then activated the suspended sentence in full and consecutively. He said that he kept the sentences as low as he could bearing in mind the impressive collection of character references including one from the complainant. The judge expressed the hope that once the appellant had served this sentence he could start to rebuild his life, and grow up and not cause serious violence in drunkenness. He said some would describe the sentence as lenient:
"It is lenient; I have shown you a degree of mercy and kept it as low as I can."
[9]The short ground of appeal is that the judge should have reduced the term of the suspended sentence which had to be served to reflect the fact that the appellant had completed the unpaid work requirement in full. It is submitted that, on the authorities, the judge should have made some significant reduction. This ground was argued in the advice of counsel who appeared at the sentencing hearing but the appellant is now represented by leading counsel, Mr Burke QC, for whose assistance we are grateful. In very thorough written submissions he has taken us to a host of authorities in which this court has generally expressed the view that where the suspended sentence order included an unpaid work requirement and that work has been fully or substantially completed, that fact should be acknowledged by some reduction in the length of the term to be activated.[10]The lesson from the present case, however, is the importance of heeding the words of the statute which governs the activation of suspended sentences. The provisions are in Schedule 12 to the Criminal Justice Act 2003. Paragraph 8 is headed "Powers of court on breach of community requirement or conviction of further offence". The provisions of paragraph 8, we emphasise, apply equally in two separate situations which amount to breach of a suspended sentence[11]The effect of these provisions, therefore, is that where there is a breach of a suspended sentence by the commission of a further offence, the court is obliged to activate the suspended sentence in full or in part unless it is unjust to do so in view of all the circumstances, including the extent to which there has been compliance with the community requirements of the order and including the facts of the subsequent offence. Thus the judge was in error in expressing the view that he was obliged to activate the sentence in full unless it was unjust to do so. The obligation, unless it is unjust to do so, is to activate the suspended sentence wholly or in part, taking account of all the circumstances.[12]We are satisfied from a review of the authorities that there will generally be some reduction of the term of the suspended sentence if there has been substantial compliance with an unpaid work requirement.

(S) 63, at page 20, this court said:

"In our judgment it is both necessary and appropriate in most cases to mark the commission of a further offence during the currency of a suspended sentence order by the activation of some part of the suspended sentence order. After all the warning that is given to an offender when such a sentence is imposed is that he will have to serve that sentence in the event that he commits a further offence during the currency of the suspended order. Ordinarily, therefore, it is likely to be appropriate to activate some part of the suspended sentence order."
[13]That is not to say, however, that there will not sometimes be a case in which it is nevertheless appropriate in all the circumstances to activate the suspended sentence in full.[14]Because the judge proceeded in this case under a misapprehension which was not corrected by either counsel, which is a matter of concern, we need to look at the matter afresh. It was greatly to the appellant's credit that he performed all his unpaid work so promptly. However, the main purpose of the suspended sentence order was to discourage the appellant from committing any further offence and to mark the seriousness of what he had done. Complying with the unpaid work requirement and paying compensation were all very well. What the appellant signally failed to do was to learn the lesson that he must not indulge in drunken violence in public houses. Instead only three months into the operational period of the suspended sentence he was doing exactly the same thing again.[15]We have considered carefully whether, as the single judge perhaps hinted in granting leave, the judge's leniency in passing a sentence of six years overall should lead us to uphold the total sentence despite the judge's error of approach - after all, it is the totality of the sentence upon which we must concentrate. On reflection, however, we do not think it would be right to take that course. The judge went to great lengths to stress that he was passing the lowest sentence he considered he could properly pass, but that was on the mistaken assumption that all of the suspended sentence had to be activated consecutively. We do not know whether, had he been addressed on the point and reminded of the authorities, he would have taken the view that there should be some further reduction in the suspended sentence term as well.[16]With some hesitation, therefore, we shall reduce the term of the suspended sentence which must be served. Mr Burke submitted that having performed as many hours community service as this there should be a reduction in the term from 18 months to six months. We do not accept that submission. It fails sufficiently to take into account the balancing exercise which must be carried out. Doing the unpaid work to comply with the order is one side of the balance. The other side of the balance is how soon after the suspended sentence order was made the fresh offence was committed and the nature of the fresh offence. Because this breach occurred so soon after the suspended sentence had been imposed, and because the subsequent offence was identical in nature, we think the reduction could only be modest. We think the appropriate term which should be served is 14 months rather than 18 months and in reaching that decision we also have regard to the principle of totality.[17]We therefore allow the appeal. We leave intact the sentence of four-and-a-half years for the later offence, but we reduce the term of the suspended sentence which was activated from 18 months to 14 months. So the total sentence becomes one of five years and eight months rather than six years. To that limited extent the appeal is allowed. WordWave International Ltd trading as DTI hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400

order

first, that the offender has failed without reasonable excuse to comply with any of the community requirements of the suspended sentence order; second, as here, that the offender is convicted of an offence committed during the operational period of the suspended sentence. Applicable equally to either of those situations, paragraph 8(2) provides as follows: "(2) The court must consider his case and deal with him in one of the following ways—(a) the court may order that the suspended sentence is to take effect with its original term unaltered(b) the court may order that the sentence is to take effect with the substitution for the original term of a lesser term." Paragraph 8(3) provides that the Court must make an order under either sub-paragraph (2)(a) or (b) unless it is of the opinion that it would be unjust to do so in view of all the circumstances including the matters mentioned in sub-paragraph (4) and where it is of that opinion the court must state its reasons. Paragraph 8(4) provides that the matters referred to are (a) the extent to which the offender has complied with any community requirements of the suspended sentence order and (b) in a case falling within sub-paragraph (1)(b), that is to say where there has been a further offence committed in breach of the suspended sentence, the facts of the subsequent offence.