Henry, R v [2018] EWCA Crim 2663

Case No 201801784/A3

[2018] EWCA Crim 2663

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Friday 26 October 2018

Strand

London, WC2A 2LL

B e f o r e:

LORD JUSTICE GREEN

MR JUSTICE GOOSE

THE RECORDER OF PRESTON

HIS HONOUR JUDGE MARK BROWN

(Sitting as a Judge of the CACD)

Between

R E G I N ACrown

Between

JAMES TERRANCE HENRY

Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

Mr D Jones appeared for Appellant

J U D G M E N T

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[1]MR JUSTICE GOOSE: The appellant James Henry, who is now aged 31, appeals with leave of the single judge in respect of a sentence imposed by His Honour Judge Field QC on 18 August 2016. He had previously been found guilty after a trial in the Crown Court at Manchester and was sentenced to fifteen years' imprisonment. The jury were unable to reach verdicts on other counts on the indictment which were ordered to lie on the file on the usual terms.

[2]The appellant's sentence was made up as follows. For attempted kidnap, contrary to section 1 of the Criminal Attempts Act 1981 (count 1), six years' imprisonment. For wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861 (count 2), twelve years' imprisonment concurrently. For a further offence of wounding with intent (count 3), twelve years' imprisonment concurrently. For possession of a firearm with intent to endanger life, contrary to section 16 of the Firearms Act 1968 (count 4), fifteen years' imprisonment concurrently.

[3]At the time of his sentence the appellant was serving a five-year sentence of imprisonment imposed on 15 October 2015, for an offence of conspiracy to supply a controlled drug of class A.

[4]The single point of appeal for which leave was granted by the single judge, concerns the effect of the fifteen-year sentence being imposed upon the appellant at the time he was serving the five-year sentence imposed in 2015.

[5]The facts of this case can be shortly stated. The offences arose out of a dispute concerning illegal drugs. The appellant, together with other accused, including James Instone, took part in a planned attack upon another man, SC, whom it was alleged had stolen drugs. On 9 January 2014 a threat was made to the son of SC that unless the drugs were returned SC would be shot. Three days later, on 12 January 2014, SC drove his car to a bingo hall in Harpurhey, Manchester, to meet his mother. He was followed by two cars, one of which was driven by the appellant. SC drove his vehicle into the car park to meet his mother who got into the car. The appellant parked his vehicle at the entrance, to block any exit in the knowledge that his co-accused, in the second car, was to attack SC whilst they carried a firearm. Instone and another accused approached SC in his car and attempted to remove him, to take him away in a kidnap. SC's mother intervened and during the course of the struggle shots were fired into the hand of SC and the wrist of his mother. SC managed to reverse his vehicle and drive off. A further shot was fired at the rear of the vehicle smashing its rear window.

[6]In sentencing the appellant and his co-accused, the judge identified the need for substantial sentences of imprisonment to reflect the seriousness of the offences. Subject to the discrete point raised in this appeal, it is not necessary to set out the offences for which the co-accused were convicted nor their sentences. The judge decided the hierarchy of involvement in the offending, placing the protagonist at the top with a sentence of twenty-five years' imprisonment. James Instone was sentenced to twenty-two years' imprisonment. In sentencing, the judge said at page 8B to D:

"I must also say something about the different roles that you played. All three of you are jointly liable for this offence. You each participated with the same guilty intention in the same criminal enterprise. It is important however for me to recognise that at all material times you James Henry were outside the zone of immediate impact parked on the side street in order to block SC's escape. It seems clear to me that on any view you played a lesser role than the others in this offence."

The judge then imposed a sentence of fifteen years' imprisonment. All other sentences were ordered to be served concurrently.

[7]During the course of mitigation on behalf of the appellant counsel submitted that none of the time served whilst remanded in custody awaiting sentence would count towards the sentence imposed, pursuant to section 240Z of the Criminal Justice Act 2003. This was because during the period of remand, the appellant was a serving prisoner in respect of his five-year sentence imposed in 2015. The judge was invited to take it into account when fixing the sentence. In response to this submission the judge stated at the end of his sentencing remarks at page 10H to 11A:

"I should add in your case James Henry this sentence will be concurrent with your existing sentence and not consecutive to it."

It is submitted on behalf of the appellant that it was the intention of the judge that the 15-year sentence should in effect have been ordered to start as if it were imposed on 15 October 2015 when he was also sentenced to five years' imprisonment. By failing to achieve this, the judge has caused the appellant to serve ten months in custody, which will not count towards his custodial term in the 15-year sentence of imprisonment which is the subject matter of this appeal.

[8]The respondent argues that the judge did not necessarily seek to accede to the submission being made on behalf of the appellant, when imposing the sentence of fifteen years which was ordered to run concurrently with the existing sentence. The judge simply sought to explain that the sentence would not be ordered to be served consecutively to the existing sentence. However, the respondent observed that such an interpretation would substantially erode the marked difference in sentencing between this appellant and his co-accused. This is because James Instone successfully appealed his sentence in this court when his 22-year sentence was reduced to 20 years to reflect the fact that he had been serving a sentence imposed in 2014 when he was on remand in custody awaiting sentence in this case - see R v James Anthony Instone

[2017] EWCA Crim 1187

[9]Whilst we are not convinced that the judge, when directing that the appellant's 15-year sentence would run concurrently with his existing sentence and not consecutively to it, we recognise that an obvious unfairness may be created if we do not allow this appeal. It would mean that James Instone would have successfully appealed his sentence and achieved a reduction to reflect the time served on remand not counting towards his sentence, but the appellant receiving no such reduction. Therefore, we are persuaded that it is appropriate to reduce the appellant's 15-year sentence by 20 months so as to give him credit for the 10 months served prior to 18 August 2016. It means therefore that we must quash the 15-year sentence of imprisonment on count 4 of the indictment and substitute in its place a sentence of 13 years and four months' imprisonment. To this extent only this appeal is allowed. Epiq Europe Ltd 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 Email: Rcj@epiqglobal.co.uk