Paget, R v [2018] EWCA Crim 635

Case No 2017 03600/A3[2018] EWCA Crim 635
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 15 March 2018
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE SIMON
MR JUSTICE GOOSE
HER HONOUR JUDGE TAYTON QC
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
THEODORE ANTONIO PAGET
Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Fleet Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)
Mr S A Beharrylal QC appeared for Appellant
J U D G M E N TThis transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.
[1]MR JUSTICE GOOSE: The appellant, Theodore Paget, who is aged 30, appeals against sentence with leave from the single judge, against his sentence imposed on 13 July 2017 in the Crown Court at Leicester by His Honour Judge Head. The appellant had previously pleaded guilty to counts 1 and 2 on an indictment charging him, respectively, with possession of a prohibited firearm, contrary to section 5(1)(aba) of the Firearms Act 1968, and possessing a firearm with intent to cause fear of violence, contrary to section 16A of the Firearm's Act 1968. The appellant pleaded not guilty to count 3, wounding with intent, contrary to the Offences Against the Persons Act 1861, but was convicted after trial on 11 July 2017.[2]After conviction His Honour Judge Head, who was the trial judge, passed sentence. The sentences he imposed were 5 years' imprisonment in respect of count 1; on count 2, an Extended Sentence of 10 years, comprising 5 years as the custodial element and 5 years the extended licence; and a 25-year Extended Sentence on count 3, comprising 20 years as the custodial element and 5 years the extended licence. All sentences were ordered to be served concurrently, making a sentence of 25 years, of which 20 years was the custodial element, 5 years the extended licence.[3]The grounds of appeal against sentence for which leave was granted are, firstly, that the starting point for sentence in respect of count 3 was too high. Secondly, that the judge failed to give sufficient weight to the mitigating factors, including the appellant's remorse and discount for early guilty plea in respect of counts 1 and 2. Thirdly, the finding of dangerousness, leading to the imposition of an Extended Sentence under section 226A of the Criminal Justice Act 2003, was wrong and manifestly excessive.[4]The appellant was aged 29 at the time of committing these offences. He had 15 previous convictions for 26 offences commencing from the age of 17. His previous convictions included drugs offences, possession of weapons and assault. He had no previous convictions for firearms offences.[5]On 8 May 2016, the appellant went to a nightclub on King Street in Leicester. He took with him a prohibited firearm, which he secreted inside a sock and placed it inside the belt of his trousers. The firearm was a semi-automatic handgun with live ammunition. By about 6.15 am, the appellant, still in the club, was intoxicated and became disruptive. He was escorted from the premises by employees of the club as he became increasingly aggressive and threatening. He warned the bar staff, saying, "You don't know who I am".[6]After he was excluded, the appellant took out the firearm and began to threaten the staff, who blocked his re-entry. The complaint, being the senior doorman, had received information that the appellant might have a firearm. When he reached the door, he observed the appellant holding the firearm and pointing it into the face of one of the other doormen. The complainant grabbed the appellant to restrain him and a struggle took place during which, on the jury's verdict, the appellant fired the handgun at close range, intending to cause really serious harm, into the groin and left thigh of the complainant.[7]The complainant's injuries were particularly serious and the complainant has been left with permanent scarring, loss of feeling in his leg and significant psychological symptoms.[8]After firing the shot, the appellant left the scene and disposed of the firearm, which was only later recovered after careful searching. A second round of ammunition was found outside the nightclub which had not been discharged. The trial judge expressed the sure conclusion that the appellant had attempted to fire the weapon a second time. After the firearm was recovered and examined, it was found to be in good working order with a safety catch, which must have been removed when the appellant fired the shot.[9]In imposing sentences on counts 1 and 2 under, respectively, section 5(1)(aba) and section 16A of the Firearms Act 1968 the judge was required to impose, unless there were exceptional circumstances so as to make it unjust, a minimum sentence of 5 years' imprisonment on each offence. The judge made clear in his sentencing remarks that had these two offences been sentenced in the absence of the section 18 wounding, he would have increased the sentences on counts 1 and 2 from the minimum term, whilst making them concurrent with each other. However, taking into account the principle of totality and the fact that he was to sentence on count 3, the judge imposed the minimum sentences required on those counts, being 5 years' imprisonment on each count concurrent with each other.[10]In sentencing on count 3, wounding with intent, contrary to section 18, the judge applied the Assault Definitive Guideline for section 18 wounding. He identified category 1 as the appropriate sentencing start point of 12 years' custody, with a range of 9 to 16 years.[11]The appellant criticises the identification of category 1 and seeks to argue that it should have been within category 2, with a starting point of 6 years and a range of 5 to 9 years.[12]In identifying category 1, the judge described as a factor indicating greater harm "sustained or repeated assault on the same victim".[13]Whilst it is accepted on behalf of the appellant that this case involved a number of factors indicating higher culpability, it is contended that this could not be described as a sustained or repeated assault on the same victim.[14]The judge relied upon the second attempt to fire the weapon as indicating that it was a sustained or repeated assault. Whether this can truly be said may not matter because, in our judgment, the extent of the injuries caused by the firearm, in which the bullet passed through the complainant's genitals and left leg, should be described as serious in the context of the offence. This itself would have justified a finding of a greater harm factor. Accordingly, the judge was, in our judgment, correct to identify count 3 as a category 1 offence with the sentencing range up to 16 years.[15]The factors indicating higher culpability include a significant degree of premeditation, to the extent that the appellant took with him a firearm with live ammunition to a nightclub, where he drank alcohol and became aggressive and used the firearm to threaten members of the public. Further, the use of the weapon itself increases the culpability of the appellant. There are no significant lower culpability factors. The circumstances which increased seriousness include the location of the offence, being in a nightclub with members of the public in close proximity; an attempt to conceal or dispose of evidence, namely the firearm after the offence; and commission of the offence whilst under the influence of alcohol. Factors reducing seriousness included no previous firearms offences and some remorse.[16]On this point, the appellant argues that insufficient credit was given by the judge when passing sentence. However, the judge did take into account remorse but to a lesser extent given that the appellant had had a trial after he had pleaded not guilty to section 18, his case being that the shooting was accidental.[17]The trial judge, who had identified the appropriate factors increasing and reducing seriousness of the offence stated at page 6, letter G to H:
"I conclude that the facts of the case and the combination of all the aggravating factors, with little mitigation, mean that the sentence for count 3 alone would be 15 years. Making allowance for the totality principle in the sentences I pass on counts 1 and 2, the sentence of count 3, standing alone, does fall within the Sentencing Council range."
[18]The judge then went on to consider the effects of imposing minimum term sentences under counts 1 and 2. He concluded that it was necessary, so as to give effect to the minimum term sentences on those counts, to impose the concurrent sentences on those counts consecutively to count 3, but also to take into account the principle of totality. In doing so, the judge had in mind the case of R v Wasim Raza [2010] 1 Cr App R (S) 56, in which this court confirmed the need to give effect to the minimum term sentence for firearms offences under section 51A of the Firearms Act 1968, but also to reflect the principle of totality in the overall sentence.[19]In the circumstances, the judge sought to aggregate the concurrent sentences on counts 1 and 2 with the sentence on count 3 and arrived at a 20-year custodial term on that count. The judge achieved this by increasing the 15-year sentence on count 3 to 20 years but making the 5-year sentences on counts 1 and 2 concurrent. It would also have been open to the judge to have maintained the sentence of 15 years on count 3 and made the 5-year concurrent sentences on counts 1 and 2 consecutive, coming to the same result.[20]The appellant argues that such a sentence of 20 years was manifestly excessive. We do not agree. The judge had already taken into account the principle of totality in making the sentences on counts 1 and 2 concurrent and by not increasing those sentences beyond the minimum term. The sentence of 15 years on count 3, before giving effect to the minimum term sentences, cannot be criticised.[21]However, in our judgment, it would have been better to structure the sentences differently, so as to retain the sentence on count 3 within the sentence range of the guideline. It would have been more appropriate to impose 15 years on count 3 and make the sentences on counts 1 and 2 concurrent with each other but consecutive on count 3, making a total of 20 years' imprisonment.[22]The appellant also challenges the finding of dangerousness and argues that the judge should have adjourned sentence to obtain a pre-sentence report for an assessment of risk under section 229 of the Criminal Justice Act 2003.[23]The psychiatric report of Dr Zaghioul dated 17 June 2017 was not of assistance upon this assessment. Nevertheless, we do not find that the judge was required to adjourn for a pre-sentence report before making a finding of dangerousness. There was, in our judgment, sufficient information before the court to make the finding. Firstly, the circumstances of these offences themselves demonstrated a present and continuing significant risk to members of the public of serious harm occasioned by the commission by the appellant of further specified offences. He had armed himself with a prohibited weapon, a handgun, with live ammunition, he hid it within his clothing and he took it into a nightclub. He was clearly willing to produce the firearm if necessary and to fire it. He threatened door staff by pointing a loaded weapon at the face of one of them. Then he deliberately fired it into the groin and left leg of the victim before he left the scene. This demonstrated that he is a highly dangerous man. The nature and circumstances of these offences were sufficient to make such a finding under section 229(1)(a) of the 2003 Act. We are satisfied that such a finding and an extended licence of 5 years was entirely appropriate.[24]After making the finding of dangerousness against the appellant, the judge made the extended licences of 5 years on counts 2 and 3 concurrent. In doing this, he correctly had in mind the decision of this court in the case of R v Brown [2006] EWCA Crim 1996 and of R v Joyce [2010] EWCA Crim 2848, which encouraged sentencers not to pass consecutive extended licence terms on offenders.[25]Accordingly, whilst the custodial term of 20 years could be said to be severe, we are satisfied that that sentence imposed by the judge was not manifestly excessive, nor wrong in principle. The structure of that sentence could have been brought into effect differently; however, it leads to the same result, which we do not find to be manifestly excessive nor wrong in principle, such that we dismiss this appeal against sentence. 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