This week’s Digest includes four judgments of the Court of Appeal (Criminal Division). The first was a renewed application for leave to appeal against conviction and an extension of time; the second was an appeal against sentence imposed for a conviction of assault occasioning actual bodily harm; and the third and fourth were references by the Attorney-General to the Court on the basis that the sentence passed were unduly lenient. The recent sentencing remarks of Mrs Justice Lang DBE are also included.
R v. Alan P [2018] EWCA Crim 1069
The judgment of the court, available here, was handed down on 04.05.18 by Mrs Justice Lang.
This was a renewed application for leave to appeal against conviction and for an extension of time on a number of grounds, which included complaints about the police investigation, his own legal representation, and the conduct of the judge. For the reasons given by the single judge, the full court also refused leave and the application; the applicant’s complaints were misconceived.
The applicant was convicted of 12 counts of indecent assault, contrary to s. 14(1) of the Sexual Offences Act 1956 against his stepdaughter. Permission to appeal against conviction and for an extension of time of 28 days were refused by the Single Judge. The appellant, renewing his application before the full court without counsel, sought leave to appeal on three points.
The first was that the police failed to investigate the allegation made against him properly. Various points were made in that regard, including that the officer in charge of the investigation had a leave of absence due to pregnancy. This was point, and points of a similar sort, were completely without merit and misconceived. The appellant went on to refer to a list of 35 questions which ought to have been addressed by the police. That was a matter for the police, however, and the questions were, in any event, explored to the appropriate extent by counsel in cross-examination at trial.
The second complaint concerned the representation provided by his counsel. There were two limbs to this challenge. First, the appellant alleged that those 35 questions should have been pursued further. However, as noted, they were explored to the appropriate extent. Second, defence counsel made no objection to the prosecution referring to the offences as constituting a ‘matrix of violence’. It was, of course, a matter for the prosecution to characterise the case as she saw fit.
Finally, it was suggested the judge pressurised the jury into making a rushed decision by making it clear at the outset of the trial that it should conclude within 4 days. There was nothing in this point; it was not even certain the judge had made such a remark and, in any event, he had indicated his willingness to let the trial run into a second week.
For the reasons given by the Single Judge, leave and the application for an extension of time were refused.
R v. Muir [2018] EWCA Crim 1107
The judgment of the Court, available here, was handed down on 09.05.18 by Mr Justice Jay.
This was an appeal against sentence on the ground that it was manifestly excessive. The appeal was dismissed; the sentencing judge was justified in departing from the 3-year threshold for assault occasioning actual bodily harm because of the particular gravity of the case.
The appellant was sentenced to a total term of imprisonment of 3 years for two counts: Count 1, assault occasioning actual bodily harm, for which a sentence of 3 years was imposed; and Count 2, criminal damage, for which no separate penalty was imposed. The salient facts were that the appellant, who had been in a relationship with the victim for five years, had violently assaulted the victim by punching her to the head. The victim was left with a fractured nose, a large clump of hair had been pulled out, and she had a swollen eye. The assault had taken place when the appellant was drunk, in the presence of the victim’s 17-year-old nephew, while three young children were upstairs.
The appellant appealed against sentence with the leave of the Single Judge on the grounds that the starting point was outside the guidelines and was therefore manifestly excessive and the sentence could have been suspended.
The Court dismissed the appeal; the judge had not erred in his approach. In his sentencing remarks, His Honour Judge Batty QC placed emphasis on a previous conviction for what was a very similar offence to the instant offence committed in 2009. Further, there were serious aggravating factors: young children were asleep upstairs; the attack was done in the presence of the victim’s 17-year-old nephew; and the appellant attempted to prevent the victim from calling the police by threatening further violence. This was clearly a category 1 offence which led to a sentence in the region of 4 years’ imprisonment. After credit for the appellant’s guilty plea, the sentence was therefore 3 years’ imprisonment. In the Court’s view, the judge was justified in departing from the 3-year threshold for the reasons that he gave.
Given the conclusion of the Court, no issue arose as to the suspending of the sentence.
HM Attorney-General v. Forsythe-Wilding [2018] EWCA Crim 1180
The judgment of the Court, available here, was handed down on 23.05.18 by Lord Justice McCombe.
This was an application by the Attorney-General to refer a sentence which he considered unduly lenient; the sentence imposed for an offence of possession with intent to supply a Class A drug, which was agreed to come within category 3 of the guideline, was 18 months suspended for two years with a drug rehabilitation requirement. Despite finding that the sentence was unduly lenient, the Court decided not to interfere with the sentence passed as it would not now be in the interests of justice for the offender to be returned to prison.
Ben Lloyd appeared for the Attorney-General.
The present offender pleaded guilty to an offence of possessing a controlled drug of Class A with intent to supply, contrary to s. 5(3) of the Misuse of Drugs Act 1971. He was sentenced by Judge Burrell QC to a term of imprisonment of 18 months, suspended for two years with a drug rehabilitation requirement. The offence was committed during the operation period of a previous suspended sentence of 8 weeks’ imprisonment. On sentencing the offender for drugs offence, the judge ordered the previous sentence to remain in force with its operational period being extended to two years.
The facts, so far as they are relevant, was that the offender had run from an address at which drug paraphernalia had been found. The offender was arrested and some 3.79 grams of heroin, wrapped in several layers of white plastic, were found in his anus. At a plea and trial preparation hearing, the offender sought a Goodyear direction, the result of which was that the judge indicated that the maximum sentence he would impose on a plea of guilty would be a suspended sentence with a drug rehabilitation requirement. The offender pleaded guilty. In sentencing the offender, the judge noted that he was taking a chance with him and “it was up to [him] to take this opportunity”.
The applicant submitted that the sentence imposed was unduly lenient since this was a category 3 offence in which the offender had a significant role. For such an offence, the Sentencing Guideline identifies a starting point of 4 years and 6 months imprisonment, with a sentencing range of between 3 years 6 months and 7 years. The minimum sentence for such an offence could not have been suspended.
For the offender, it was submitted that the sentence was lenient, but not unduly so. s. 125(1) of the Coroners and Justice Act 2009 gives the court a wide discretion to depart from the sentencing guidelines where it sees fit to do so in the interests of justice. Further, in drugs offence case, more constructive sentences, which capitalise on a motivation to change – i.e. suspended sentences with a drug rehabilitation requirement – are in the public interest where (i) the offence is of a kind it will not undermine public confidence in the criminal justice system if a non-custodial sentence is passed and (ii) there is a proper basis justifying a real reason to believe the offender wants to rid himself of drugs (Attorney-General’s Reference No. 101 of 2009 (Matheson) [2010] 2 Cr. App. R (s) at page 524, per Hughes LJ; Attorney-General’s Reference No. 64 of 2003 (Boujettif & anor) [2003] EWCA Crim 3514 was also referred to). Since the offender’s conduct since arrest had demonstrated a will to be free from drugs, the judge’s approach was justified.
In the Court’s view, however, this was a case where the sentence imposed was unduly lenient for the reason that the usual sentence would have been one within the bracket envisaged by the guideline for a category 3 offence. Nevertheless, in this exceptional case, and with the benefit of the material now available, the Court decided not to interfere with the sentence passed since it would not now be in the interests of justice to return the offender to prison.
R v. Usherwood [2018] EWCA Crim 1156
The judgment of the court, available here, was handed down on 10.05.18 by Lord Justice Treacy.
This was an application under s. 36 of the Criminal Justice Act 2003 to refer to the court a sentence which, in the Attorney General’s opinion, was unduly lenient. The court held that it was unduly so; essentially, the judge had failed to apply the mandatory term of imprisonment required for a third drugs-related offence under s. 110 of the Powers of Criminal Courts (Sentencing) Act 2000. There were, on the facts of this case, no exceptional circumstances which justified departure from the statute.
On 23 February 2018, in the Crown Court at Worcester, Mr Usherwood was sentenced to a total of four years’ imprisonment: he received three years to run concurrently for two offences of possession with intent to supply and one offence of producing crack cocaine; a consecutive term of one year’s imprisonment was imposed for breach of a suspended sentence imposed in April 2017. No separate penalty was imposed for breach of a suspended sentence, which the offender received in May 2017, of 12 weeks for possession of a prohibited article in prison. The offender had been convicted in the past of some 23 offences. Of particular relevance were two previous convictions of possession with intent to supply.
In sentencing, the judge had the benefit of a pre-sentence report which assessed the offender as being at a high risk of offending and noted that, in relation to the April suspended sentence, there had been no compliance with the unpaid work or drug rehabilitation requirements. The judge noted that the present offence constituted his third drug conviction such that s. 110 of the Powers of Criminal Courts (Sentencing) Act 2000 (“PCC(S)A”) came into play. Nevertheless, the judge ultimately held that it would have been unjust to apply s. 110 PCC(S)A for the reasons advanced by his counsel; namely, that the offender had little chance but to reoffend in order to reduce his drugs debt; the application of s.110 would lead to a long custodial sentence for a man of 20 years of age, and the judge had received a letter from the offender expressing remorse. Accordingly, he passed sentences at a lower level.
On a reference by the Attorney-General under s.36 of the Criminal Justice Act 2003, the court held that the sentences passed were unduly lenient. The judge’s reasons for not applying s. 110 PCC(S)A were, in their opinion, wholly inadequate. In R v. Lucas [2012] 2 Cr App R(S) 14, the court had made it clear that a court was not entitled to treat perfectly normal circumstances – i.e. youthfulness, being sucked into gang culture, and being under pressure to pay drug debts – as “particular circumstances” justifying the non-imposition of the mandatory minimum term. By analogy with Attorney General’s Reference No 115 of 2015 (R v Greenfield) [2016] 2 Cr App R(S) 23, a case that dealt with s. 51A of the Firearms Act 1968, “exceptional is not to be diluted; sympathy for an offender is not enough to prevent a judge from doing their statutory duty”. There were no such circumstances in this case.
Accordingly, the court gave leave and amended the sentence to 67 months’ detention in a young offender institution, which gave the maximum amount of credit for a guilty plea on a sentence where s. 110 PCC(S)A applied. For breach of the April 2017 suspended sentence, the twelve weeks’ detention remained unchanged as it was to run consecutively. Finally, for the breach of the May 2017 suspended sentence, a twelve weeks sentence, to run consecutively, was imposed in place of the lack of a separate penalty.
R v. Berlinah Wallace, Mrs Justice Nicola Davies DBE, Bristol Crown Court, 23 May 2018
The full remarks are available here.
The offender was convicted of the offence of applying a corrosive fluid with intent contrary to s. 29 of the Offences Against the Person Act 1861. The particulars of the offence were that on the 23 September 2015, she unlawfully and maliciously threw sulphuric acid upon Mark van Dongen with intend to do some bodily harm to him.
Mr van Dongen was the offender’s partner of five years. He sought to leave her and, as a result, she attacked him with 98% sulphuric acid at 0300 when he had just awoken, saying “If I can’t have you, no one can”. She did nothing to help but rather sat on the sofa and telephoned a friend. There was a degree of premeditation; 82 separate entries on her computer demonstrated the extent of her research. Mr van Dongen was seriously maimed and, eventually, took his own life at euthanasia clinic in Belgium.
As there were no specific Sentencing Council Guidelines for the offence, assistance was derived from the Guidelines in respect of s. 18 offences. Applying those guidelines, this was clearly one which fell within Category 1. Aggravating factors included the degree of premeditation; the use of a weapon; and the deliberate targeting of a vulnerable victim. Factors which increased the seriousness of her offending were the ongoing effect upon the victim, the fact that the judge was satisfied she had committed previous violence against Mr van Dongen and exploited a position of trust. Further, under s. 225 of the Criminal Justice Act 2003, the judge considered the offence a serious offence and the offender dangerous. Accordingly, in the judge’s opinion, a discretionary life sentence was appropriate. Indeed, life imprisonment was the only sentence which reflected not only the nature of the offending but the continuing risk she posed.
In line with sentencing practice, i.e. the minimum term for an inertinite life sentence is half of the equivalent determinate sentence, the judge set the minimum term at 6 years, less 972 days that the offender had spent in custody.
Harassment rife in Chambers and Courts, barristers’ group says
The inaugural meeting of Behind the Gown, a group which aims to highlight sexual harassment at the Bar, heard that barristers’ chambers and courts are plagued with sexual harassment, bullying, and abuse of power.
The full piece can be read here.
Senate approves bill to overhaul system for reporting sexual harassment
The senate has approved a bill which is to designed to overhaul the current system for handling sexual harassment claims on Capitol Hill. The bill eliminates mandatory waiting periods for the handling of claims and requires lawmakers to repay the treasury for harassment settlements.
The full piece can be read here.
Mother jailed for duping daughter into forced marriage
A woman from Birmingham has received a prison sentence of 4 and ½ years for duping her 17-year-old daughter into travelling to Pakistan to marry a man who was 16 years her senior. The woman was found guilty on two counts of forced marriage and third of perjury.
The full piece can be read here.
Secret Evidence leads to overturning of convictions
Five men, who were convicted of conspiracy to murder following a shooting in Stoke-on-Trent in 2010, have had their convictions quashed and substituted for convictions of conspiracy to commit grievous bodily harm because of secret evidence not disclosed at trial.
The full piece can be read here.
