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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Taylor, R. v [2008] EWCA Crim 465 (22 February 2008) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/465.html Cite as: [2008] EWCA Crim 465

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		22nd February 2008

1. MR JUSTICE BLAKE: On 15th August 2007, at the Crown Court at Sheffield following a trial, this appellant was convicted on two counts of robbery and two counts of assault occasioning actual bodily harm. For the robberies he was sentenced by HHJ Keen to concurrent terms of imprisonment for public protection with a minimum term of eight years less the period spent on remand. He was sentenced to two concurrent determinate sentences on the assaults occasioning actual bodily harm.
2. Permission to appeal having been granted by the Single Judge, there are three issues raised in this appeal: first, was the minimum term of eight years manifestly excessive in the circumstances of this case; second, what was the period to be deducted from the eight years in respect of time spent on remand; third, what should the sentences have been for the assaults occasioning actual bodily harm?
3. At the hearing of this appeal on 19th February, we indicated that we were proposing to allow the appeal to the extent of reducing the minimum term from eight years to seven. It was common ground that the determinate sentences for the assault occasioning actual bodily harm were unlawful and concurrent sentences of extended sentences under the 2003 Act should have been imposed. There was then an issue as to what period of deduction should be made for the period of 114 days this appellant spent on remand on these charges prior to his conviction. The appellant submitted that the appropriate deduction should be double that period on an analogy with the practice of the court in both detention and training order cases and also where there has been a period of administrative recall on licence to be taken into account by the court when a prisoner is sentenced for offences committed in breach of licence.
4. He appears to have persuaded the trial judge that it was appropriate to make double accounting of the period on remand and there was some degree of confusion in the court papers as to what the precise determinate period was. We directed that this part of the argument should be put over for the Crown to attend and make submissions, but in the event counsel for the appellant notified this court on 21st February that he was abandoning this limb of the argument as erroneous. In all the circumstances, the sentence that we substitute is thus seven years minus 114 days, which makes a minimum term of six years and 224 days. We now give our reasons for this decision.
5. There were two victims of the appellant's violence, each of whom was robbed and then assaulted on different days. On 21st February 2007, the appellant attacked the first complainant, who was a prostitute working the streets of Sheffield at night and who had transacted business with a client. The appellant was known to the complainant and indeed the complainant had given evidence against the appellant in the past for serious crimes for which he had been acquitted, having been remanded on custody for substantial periods. From the account at trial the jury were satisfied that the appellant had grabbed the complainant, took £80 from her by force, pushed her to the ground and, when on the ground and having robbed her of her money, kicked her severely six or more times, causing extensive bruising to her back, buttocks, arms and legs. He was making threats to kill her. The jury were not satisfied that in the course of this assault there was in addition a use of a weapon or a broom handle for a sexual attack upon the complainant. The learned judge described the assault, after the robbery had been effected, as one of the most serious offences of assault occasioning actual bodily harm he had ever seen and it was an act of gratuitous violence, putting her to the ground, persistently hitting and kicking her until she was black and blue virtually all over her body.
6. On 26th March 2007 the second offence occurred. The appellant, with another accomplice, a female prostitute, robbed a male complainant, who was the boyfriend and protector of yet another prostitute working the streets of Sheffield. On this occasion, the grabbing of a wallet and mobile phone was undertaken by the female accomplice of the appellant but, when the victim resisted, the appellant produced a knife that he carried with him and then gratuitously cut the victim, causing minor injuries.
7. No complaint is or could be made of the sentence of imprisonment for public protection imposed for these robberies. Amongst his numerous previous convictions, the appellant had convictions including for a specified offence for assault occasioning grievous bodily harm in February 2004, for which he had been sent to prison for 18 months, and in 2001 he had a conviction for an offence of carrying a bladed instrument, a meat cleaver, with an eight inch blade in a public place.
8. In his sentencing remarks, the learned judge indicated that if he had imposed determinate sentences he would have made each consecutive to the other in the light of the fact that there were different occasions and gratuitous violence was inflicted after the property had been taken. He was entitled to take the view that consecutive sentences were appropriate and was entitled to have regard to the aggregate criminality demonstrated on the two occasions when fixing the minimum term for the two robberies, which were the only offences to which a sentence of imprisonment for public protection could apply. However, the learned judge made no reference to the Sentencing Guidelines Council Definitive Guidelines on Robbery, published in July 2006. That was unfortunate. It is the duty of the court to have regard to the Sentencing Guidelines Council guidelines pursuant to section 172 of the Criminal Justice Act 2003. Further, in a case of street robbery such as the present, the guidelines provided a helpful classification of seriousness, starting point and range. Of course, guidelines are guidelines rather than a straitjacket, but where there are applicable guidelines directly in point this court would expect it to be reflected in the judge's reasons if there is to be a departure from them.
9. In this case, taking the robbery and the ABH on the first victim together, the guidance of the Council shows that for the first incident a starting point of eight years was appropriate, having regard to the serious physical injuries to the complainant and the fact that this made it a category 3 case. The victim was vulnerable, clearly terrified of the appellant and may have been targeted because of the previous unsuccessful prosecution. The possession of the knife and the use of it to persuade the male complainant in the second incident to desist from resistance to the robbery that the appellant was engaged in is a significant factor of the second incident but, in the light of the judge's conclusions that the actual injuries inflicted were not serious and minor, this was a category 2 robbery with a starting point of four and range of two to seven years in custody. Taking the eight years plus the consecutive term for the second robbery, with a range of two to seven years and applying the totality principle, we consider that the notional determinate sentence should have been 14 years rather than 16 years and the minimum term should accordingly be half that, namely seven years, and the eight years was excessive.
10. The minimum term must be expressed with clarity so that the defendant and the prison service know precisely what has to be served. This sentence failed to achieve that. We make the following observations. Firstly, when considering allowing for periods in remand where a sentence of imprisonment for public protection is to be imposed, the relevant statutory provisions are not section 240 of the Criminal Justice Act 2003 but section 82A of the Powers of Criminal Courts (Sentencing) Act 2000. Section 82A directs the court to have regard to the remand when setting the minimum term rather than providing that the remand time is treated as serving that term. There is a superficial resemblance in the statutory language with the provisions in section 101(8) of the 2000 statute dealing with remand time where the court is imposing a detention and training order. It is clear, for the reasons set out most recently by this court in its decision in the case of R v Eagles [2006] EWCA Crim 2368 that, when a detention and training order is to be imposed, the court looks at the total term to be served and is limited to one of a number of pre-set total terms provided by the statute. In those circumstances, because the remand time has to be taken into account when assessing the total determinate term, the remand time is doubled in order to ensure that people sentenced to a detention and training order are treated in the same way as those serving an ordinary determinate term. There is no analogy, however, between a detention and training order and the minimum term when fixing an imprisonment for public protection. The remand time here is not being deducted from the 14 years that we would have concluded would have been the appropriate notional determinate term but from the minimum term, the half of the 14 years, and therefore there is no need to double the remand time and that is an error in principle. It is not necessary in this judgment to also explain the distinction between the cases where the courts have provided for double remand time where there has been a breach of licence.
11. It was also urged that the judge should have noted the time spent on remand pursuant to a previous acquittal of this appellant. That is a matter for the judge to consider. In any particular case he is not bound to make such a deduction but might well think in an appropriate case he should reflect it. However, it does not affect the conclusion to which we have come, which is that the minimum term was in any event manifestly excessive and for these reasons this appeal is allowed to the extent of substituting the term already specified earlier in this judgment.