No: 2007/6377/A6 
Neutral Citation Number: [2008] EWCA Crim 707
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Wednesday, 5 March 2008
 
B e f o r e:
 
LORD JUSTICE DYSON 
MR JUSTICE PENRY‑DAVEY 
SIR CHRISTOPHER HOLLAND 
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R E G I N A 

v 

JAMES MACDONALD
 
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Miss R Upton appeared on behalf of the Appellant
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J U D G M E N T
1.	SIR CHRISTOPHER HOLLAND:  James Terence George MacDonald is aged 23.  On 9th November 2007 at Lewes Crown Court he pleaded guilty to an offence under the Criminal Justice and Public Order Act.  The offence had originally been indicted as intimidation, contrary to section 51(1) of that Act, but we are told that in the event the indictment was amended so that he pleaded guilty to revenge, contrary to section 51(2) of the Act.  In the event he was sentenced to four years' imprisonment, the judge directing that that period be discounted by a period of 75 days that the judge believed he had spent in custody on remand.  He appeals against that sentence with the leave of the single judge.
2.	Turning to the facts, they are as follows.  The matter starts on 29th September 2006 when he was convicted of affray at Lewes Crown Court following a trial.  A Crown witness at that trial had been a gentleman, David Rees‑Avery.  The end result of that conviction was that he was sentenced to 12 months' imprisonment and there was a 12 month extension period imposed for the licence.  
3.	On 10th May 2007 this appellant was released from custody on licence.  On 22nd July 2007 the victim, David Rees‑Avery was with his teenage sons in the Asda supermarket in Brighton.  Also present in the supermarket was this appellant.  One of the sons was approached by the appellant who said: "You're part of the Avery family".  The appellant then noticed the victim and threatened: "I'm going to fucking have you outside, I'm going to fucking do you, I'm going to kill you."  The appellant was accompanied by another person who tried to intervene.  The victim went down another aisle in the supermarket and continued with his shopping until he saw the appellant again, who walked straight towards him and said: "I'm going to have you, you fucking arsehole".  The appellant then swung a punch at the victim.  The victim tried to duck out of the way but the punch landed on his right ear.  The victim's ear became red and sore and he suffered a headache.  The victim report the matter to the police and the appellant was arrested.  In interview he made no comment to all the material questions, but he was subsequently picked out by the victim at an identification procedure.  The victim made a victim impact statement indicating that the incident had made a profound impression upon him and there were long‑lasting effects.
4.	Turning to the other material that was before the sentencing court, first, the appellant had a bad record for violence.  Second, however, there was a letter before the court from the CARAT team (Counselling, Assessment, Referal, Advice, Throughcare team) at Lewes Prison indicating that the appellant whilst in custody had been addressing his problems and had indicated to the team that he had a genuine desire to make changes to his lifestyle.  
5.	The judge in his sentencing remarks indicated that he took a very strong view about this form of conduct:
"You have now exacted revenge upon a decent member of the public who you called as a witness in a criminal trial.  Intimidation and revenge on those who give evidence is a very serious offence.  As I am sure you appreciate, it strikes at the very heart of our criminal justice system.  Why?  Because responsible law‑abiding members of society are required, often, to do their public duty as a witness and give evidence.  If they are prevented from doing that vital duty because they live in a climate of fear that some brutal thug is going to come and get them either if they give evidence or in order to prevent them giving evidence, our entire system of Criminal Justice crumbles into nothing." 
He then said:
"Taking into account your plea, and I give you full credit for that, and taking into account your antecedent history, which is dreadful, consistent with my duty to the public, and in order to impose a deterrent sentence to deter others from assaulting those that have testified against them, or intimidating them, the least sentence I impose upon you is one of four years' imprisonment."
6.	The essential point taken by counsel on behalf of this appellant relates to the fact that the maximum sentence for this offence as prescribed by Parliament is five years.  Thus it is arguable that the judge had as his starting point the maximum sentence and thereafter made some discount against it in order to arrive at four years.  That then raises the second point which is this, that if that is the judge's thinking then the amount of discount was wholly inadequate.  It should have been more like a third.  That is if he was minded to start with the maximum sentence then the end result should have been a sentence of three years four months.  This then leads on to the next submission and it is to this effect, this was not a case in which the maximum sentence could be justified.  Granted it was serious, but it was not at that level of seriousness.  
7.	These points have weighed with this court.  In the judgment of this court an appropriate starting point was four years.  That should have been discounted by a third for the plea of guilty and that leads to the sentence of two‑and‑a‑half years.  Our first decision therefore is to quash the sentence of four years and substitute for it a sentence of two‑and‑a‑half years' imprisonment.
8.	There are two further matters.  The first is this.  The judge was unhappily misled by counsel in the court below.  He was led to believe that the appellant had been in custody on remand awaiting sentence whereas the true position was that he had been in custody subject to recall, that is, serving the sentence originally imposed in September 2006.  Two points therefore arose.  The first was as to whether the judge should have given any direction as to whether this fresh sentence should be served concurrently or consecutively.  Before us today Miss Upton helpfully points out that the matter is governed by the Criminal Justice Act 2003, section 265, which indicates that the fresh sentence should be served concurrently.  Therefore we make the position clear that the two‑and‑a‑half year sentence is to be served concurrently with the sentence that was imposed in September 2006.  By the same token, however, there was no basis for the order made by the judge, namely that the 75 days spent in custody should count against the sentence.  We make no order in that regard.  The period spent in custody prior to sentence was spent serving the original sentence of imprisonment.
9.	In summary, therefore, the sentence of four years is quashed and in its place there is a sentence of two‑and‑a‑half years, to be served concurrent to the preceding sentence.