Brosch, R v [2020] EWCA Crim 601

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.This 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.No. 201904594 A1IN THE COURT OF APPEAL CRIMINAL DIVISION[2020] EWCA Crim 601Venue Royal Courts of JusticeDate Tuesday, 7 April 2020
Before
LADY JUSTICE SIMLER DBE MR JUSTICE MARTIN SPENCER MRS JUSTICE FARBEY DBE
Between
REGINACrownV
Between
RICHARD BROSCH__________Computer-aided Transcript prepared from the Stenographic Notes of Opus 2 International Ltd.Official Court Reporters and Audio Transcribers5 New Street Square, London, EC4A 3BFTel: 020 7831 5627 Fax: 020 7831 7737CACD.ACO@opus2.digital_________J U D G M E N T
[1]The appellant renews his application for leave to appeal against a sentence of imprisonment of 20 months imposed by HHJ Thackray in the Crown Court at Kingston upon Hull on 30 October 2019 upon the applicant's plea of guilty to a charge of having an article with a blade or point contrary to s.139(1) of the Criminal Justice Act 1988. The applicant also pleaded guilty to an offence of breach of a Criminal Behaviour Order contrary to s.30(1) and (2) of the Antisocial Behaviour, Crime and Policing Act 2014, in respect of which a sentence of imprisonment of eight months was imposed and in respect of which no application is made.[2]The facts are clear from the summary prepared by the Criminal Appeal Office and need not be repeated for the purposes of this judgment.[3]The applicant had very significant previous convictions. The learned judge properly had regard to the Guidelines in relation to domestic violence, bladed articles, breach of Criminal Behaviour orders, totality and the Guideline in relation to the imposition of community and custodial sentences. He dealt with the bladed article offence as the lead offence and passed a concurrent sentence for the breach of the Criminal Behaviour Order. There was no dispute that within the Sentencing Guideline the offending had been culpability A as it had involved a bladed weapon. The Crown would submit that it was a category 1 case and the defence had submitted that it was a category 2 case. The learned judge found that the offending was somewhere between categories 1 and 2 with a risk of serious disorder.[4]The applicant's previous convictions included convictions for possessing a bladed article and threatening to kill and these significantly aggravated the index offending. So far as mitigation is concerned, the judge took account of the fact that the applicant had made some progress in custody. He also had regard to the applicant's mental health difficulties.[5]He had the principle of totality well in mind. He afforded the applicant credit of one-sixth from the sentence he would otherwise have imposed in relation to the bladed article offence, given that there had been a Newton Hearing in which the learned judge had wholly disbelieved the applicant's account. The learned judge said that the least possible sentence he could have imposed after a trial would have been one of two years' imprisonment. He reduced that sentence to one of 20 months' imprisonment to reflect and give credit for the applicant's guilty plea in the light of the Newton Hearing. He considered whether the sentence could be suspended, but concluded it could not. He concluded that the applicant could not be rehabilitated in the community and, in any event, the appropriate punishment could only be achieved by an immediate custodial sentence.[6]The application for leave to appeal was considered by the single judge, Mr

Justice Griffiths, who said:

"The judge saw the CCTV and heard you give evidence at your Newton Hearing. He found as a fact 'You were in the business that day and setting out to intimidate and frighten people and that is why you were carrying the meat cleaver,' and that this was pursued 'with your ex-partner and then some youths in the street, waving the meat cleaver about, banging it on the bin as they cycled past you only a short distance away.' He was therefore entitled to identify the category 1 feature of an offence committed in circumstances where there was a risk of serious disorder. He was entitled to find it was very much aggravated by previous convictions. The Guideline starting point of 18 months with a range of one year to two and a half years shows that your sentence of 20 months was not manifestly excessive in these circumstances."
OPUS 2 DIGITAL TRANSCRIPTION 7. 7 We wholly agree with the single judge and, in those circumstances this application is dismissed. 8. OPUS 2 DIGITAL TRANSCRIPTION CERTIFICATE Opus 2 International Limited hereby certifies that the above is an accurate and complete record of the Judgment or part thereof. Transcribed by Opus 2 International Limited Official Court Reporters and Audio Transcribers 5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737CACD.ACO@opus2.digital This transcript has been approved by the Judge.