No. 2007/06177/A7
Neutral Citation Number: [2008] EWCA Crim 553
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Wednesday 27 February 2008

B e f o r e:

LORD  JUSTICE  DYSON

MR  JUSTICE  MADDISON

and

SIR  RICHARD  CURTIS
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R E G I N A

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JAMES  IAN  McNEILL
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Miss L Goddard appeared on behalf of the Applicant

Miss J Beale appeared on behalf of the Crown
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Judgment

Wednesday  27  February  2008

LORD JUSTICE DYSON: 
1.  On 2 November 2007, in the Crown Court at Guildford, the applicant was sentenced for 13 offences on committal number S20070217.  There were three groups of offences which the applicant had committed on three separate occasions.  The first offence ("offence 1") was committed on 14 December 2006.  It was a domestic burglary.  The applicant was committed for sentence under section 6 of the Powers of Criminal Courts (Sentencing) Act 2000 ("the 2000 Act").  He was sentenced to four months' imprisonment (sic).  Four offences were committed on 3 January 2007, for each of which the applicant was committed for sentence under section 6 of the 2000 Act.  For offences 2 (theft) and 3 (taking without consent) he was sentenced to two months' imprisonment (sic) concurrent on each, but consecutive to the other sentences.  For offences 4 and 5 (driving without insurance and without a licence), the Recorder mentioned no separate penalties, save for an endorsement of licence.  

2.  Eight offences were committed by the applicant on 8 September 2007.  Offences 6, 7 and 9 (two burglaries and an attempted burglary) were committed for sentence under section 3 of the 2000 Act.  Offence 8 (taking without consent) was committed for sentence under section 6.  For these four offences the Recorder passed sentences of six months' imprisonment (sic) concurrent inter se, but consecutive to the other sentences.  Offence 10 (aggravated taking without consent) was committed for sentence under section 6.  Offence 11 (assault with intent to resist arrest) was committed under section 3.  For these two offences the Recorder passed sentences of six months' imprisonment (sic) concurrent inter se, but otherwise consecutive.  Offences 12 and 13 (driving without insurance) were committed for sentence under section 6.  For these two offences the Recorder said nothing by way of separate penalty, save for endorsement of licence.  The total sentence, therefore, was one of 18 months' imprisonment (sic).  The Recorder's purported sentence of imprisonment was unlawful and was plainly an error for a sentence of detention in a young offender institution since the applicant was under the age of 21: see section 89(1) of the 2000 Act.

3.  The application for leave to appeal against sentence has been referred to the full court by the Registrar.  We give leave.

4.  We turn to the facts.  The facts relating to offence 1 are these.  Lynne O'Connell, who ran a business called RSVP from her home, engaged some casual Christmas staff in 2006.  This included the appellant, who is a son of a friend of hers.  The work entailed being mainly in the outbuilding of her house, but the staff were allowed into the house to use the lavatory and kitchen.  On 14 December 2006 the appellant went into an area of the house where he was not permitted to be.  He stole £400 in Swiss francs from a little box where they were kept.

5.  The appellant attended court in respect of this matter on 12 January 2007.  However, in the meantime, on 3 January he took from his mother's handbag £20 and the keys to her safe (offence 2).  He then took her car keys from the safe, drove the car to a public house, parked it and smashed its window to make it look as if somebody else had taken the car (offence 3).  He was also charged with having no licence and no insurance on that occasion (offences 4 and 5).  It seems that he has never had a licence of any description.  The print-out from the DVLC came back as "no trace", despite his having had six penalty points imposed on him in respect of a previous offence of driving without insurance.

6.  On 8 September 2007 the appellant attempted a burglary at 33 Potter's Crescent, Ash.  He did not manage to complete that offence because he was heard damaging the patio doors which he had forced open at the rear (offence 9).  He then went into 31 Chester Road, where the door was open as people were coming and going (offence 6).  He stole car keys and then took a Ford Focus car (offence 8).  A postman saw the appellant behaving oddly.  The vehicle was found in the street in a damaged condition.  

7.  Having left the Ford Focus, the appellant went on to a house called "Aniryss" at Thunder Hill (offence 7).  He took a Volvo from outside that house.  The Volvo had a Tracker fitted which enabled the police to work out where he was.  He drove the vehicle into a police car, got out and ran away (offences 10, 12 and 13).  He was seen by an off-duty police officer who managed to trap him in a garage.  The appellant assaulted the police officer with intent to resist arrest by picking up a trowel which was in the garage and hitting the officer in the face with it (offence 11).

8.  The appellant was arrested.  At interview he initially denied the offences.  He said that he had been told that the cars were for sale and had gone to the premises to view them.  When interviewed later he was presented with evidence of identification by a witness and from his fingerprints on one of the cars.  He made full admissions and pleaded guilty in the magistrates' court on the occasion of his first appearance.

9.  The appellant is 19 years of age.  He had never received a custodial sentence.  He has previous convictions for taking a vehicle without consent and other driving offences in April 2006 for which he received a four months' referral order. 

10.  In a pre-sentence report the probation officer said that detention in a young offender institution would punish the appellant but would confirm his criminality.  Should the court feel that his time on remand had had a salutary effect and convinced him to be law-abiding in future, the court might impose a community order or a suspended sentence order with requirements.  The appellant was assessed as suitable for supervision and programme requirements to attend the Enhanced Thinking Skills Group Work Programme.  He was also assessed as suitable for an unpaid work requirement and work was immediately available. 

11.  The Recorder said that he could not overlook the fact that on three occasions the appellant had ignored opportunities to change his ways.  He had burgled people's houses, stolen and damaged their cars and attacked those who had tried to stop him in his "crime spree".  Because of the appellant's youth only a short sentence would be passed, but the Recorder could not justify anything less than a custodial sentence.

12.  There are a number of respects in which these sentences were unlawful.  We have already mentioned the imposition of sentences of imprisonment.  The Recorder made other errors, however.  It was right for him to proceed on the basis that the aggravated vehicle taking was a summary only offence.  On that basis the sentence of six months that he imposed for offence 10 was lawful as an individual sentence, but the Recorder could not lawfully pass an aggregate of more than six months for all the summary only offences.  But he passed a sentence of two months in respect of offence 3 and a consecutive sentence of six months in respect of offence 8 (both being summary only offences).  The result, therefore, was that the aggregate of the sentences imposed for the three summary only offences (offences 3, 8 and 10) was one of 14 months when the Recorder's power was limited to imposing an aggregate sentence of six months.  Accordingly, before we consider the totality argument that has been raised on behalf of the appellant, we make the necessary adjustments to those sentences, to reduce the aggregate of them to no more than six months.  That we would achieve by quashing the sentence of six months passed in respect of offence 8 and substituting one of two months, and quashing the sentence of six months passed in respect of offence 10 and substituting one of two months.  

13.  If we were to make no further adjustments to the sentences passed in respect of the thirteen offences, the total sentence would remain as one of 18 months' detention in a young offender institution.  It is submitted, however, that the total of 18 months was manifestly excessive in the circumstances.  Miss Goddard accepts that the total of twelve months passed in respect of offences 6-11 inclusive for the offending committed on 8 September 2007 was itself justified and could not arguably be said to be excessive.  Her principal submission is that, having regard to the principle of totality, the Recorder was wrong to pass custodial sentences totalling six months in respect of offences 1, 2 and 3.  She submits that those sentences should have been made concurrent with the twelve months imposed in respect of offences 6-11.  She emphasises the fact that the appellant was only 18 years of age at the time; that he had never received a custodial sentence before; that he had pleaded guilty at the first opportunity; and that, although he has previous convictions, his record was by no means serious.  Finally, she submits that the offending which is the subject of offences 1, 2 and 3 was not of a particularly serious nature and that in all the circumstances the right sentence in this case was one of twelve months in total.

14.  We do not agree.  In our judgment, when viewed as a whole, the total offending in this case was very serious.  It involved several domestic burglaries, an attempted domestic burglary, and a serious offence of assault with intent to resist arrest by striking a police officer in the face with a trowel.  The Recorder was right to describe it as a "spree" of serious offending.  In our judgment, despite the points made by Miss Goddard, the Recorder's total sentence of 18 months' detention was not manifestly excessive.

15.  The errors made by the Recorder do not end with those to which we have already referred.  He imposed a one year disqualification from driving for offence 10 and purported to make a six months' (sic) endorsement for all the other endorsable offences, leading to a further two years' disqualification under the totting up procedure, making a total of three years' disqualification from driving.  Apart from the slip of the tongue reference to "six months' endorsement" rather than an endorsement of 6 penalty points, the Recorder fell into further error.  He was not entitled to impose a disqualification for a further two years to run from the expiry of the twelve months' disqualification which he imposed in respect of offence 10.  The position is clear: all orders for disqualification take effect from the day upon which they are imposed.  Accordingly, if (as he did) the Recorder disqualified the appellant under the totting-up provisions, as well as under some other provision (as he did in this case), then those disqualifications had to run concurrently.

16.  We have had to consider whether we should restructure this part of the sentences so as to yield the same result, namely one of three years' disqualification.  Miss Goddard submits that, although it is open to this court to take that course, we should not do so because three years is longer than is justified on the facts of this case.  She makes the point that a disqualification under the totting-up provisions normally starts with a six months' disqualification and that a disqualification of two years would be manifestly excessive.  As regards the aggravated vehicle taking (offence 10), it was by no means the worst example of its kind.  She submits that we should view it as being at the lower end of the scale of that kind of offence.  

17.  We accept that this was not by any means the most serious kind of aggravated vehicle taking.  Nevertheless, the appellant has shown a complete disregard of the law in relation to driving.  He had the previous conviction to which we have referred, and the catalogue of driving offences in our judgment merits a significant period of disqualification.  We see no reason not to arrive at the same period of disqualification as did the Recorder, but we propose to do it in a way which the law permits.  We will achieve that result as follows: for offence 3, there will be a disqualification of three years and the appellant's licence will be endorsed; offence 4, licence endorsed; offence 5, licence endorsed; offence 8, disqualified from driving for three years, licence endorsed; offence 10, disqualified for three years and until the appellant has passed an extended driving test, licence endorsed; offence 12, licence endorsed; and offence 13, disqualified for three years under the totting-up provisions, licence endorsed.  Finally, for the avoidance of doubt, we make it clear that, apart from the disqualifications and the endorsements to which we have referred, there will be no separate penalties for offences 4, 5, 12 or 13.  It was not clear whether the Recorder intended to order no separate penalty.

18.  The appeal is allowed to the extent that we have indicated.  In practice it will make no difference to the term of detention that the appellant must serve; nor to the length of the disqualification.

19.  Finally, we cannot conclude without observing that this has been a very sorry tale of a sentencing exercise.  The Recorder's sentencing remarks are brief in the extreme.  He did not set out with the degree of detail that we would have expected in a complicated case of this kind the facts and the reasons why he reached the conclusions that he did.  More importantly, he made a number of serious errors which led to the unlawful sentences we have described.  We also, with regret, have to note that we think that Miss Beale (who appeared for the prosecution then as today) let the Recorder down in a number of respects.  She should have been sufficiently on top of this case to ensure that the Recorder did not make this series of errors which have led to a complicated and no doubt expensive appeal.  We can see no excuse for her failure.  We were told that the Recorder delivered his sentencing remarks quickly and that there was some doubt in the mind of both Miss Beale and Miss Goddard as to what he had said.  If they were in any doubt as to what he had said, then they were under a duty to make their doubts known to the Recorder and ask him to clarify them.  They could not have been in any doubt as to the error in relation to the imposition of a sentence of imprisonment.  Although we accept that this was a complicated sentencing exercise, all legal representatives in a case which involves complexity have a duty to prepare themselves for the case and be in a position to direct the judge as to what his or her powers are and deflect the judge from making an error.

20.  We direct that a copy of this judgment is sent to the Crown Prosecution Service so that they can take note of what has happened in this case and, we hope, take steps to avoid its recurrence on another occasion.

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