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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 >> Khan v R [2009] EWCA Crim 389 (11 March 2009) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/389.html Cite as: [2010] 1 Cr App R (S) 1, [2010] 1 Cr App Rep (S) 1, [2009] EWCA Crim 389, [2009] Crim LR 744

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Worcester Crown Court
His Honour Judge RUNDELL
200805059A6*1

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/03/2009

The Hon. Mr. Justice Hedley :

1. This is an appeal (with leave of the single judge) against a sentence of three years imprisonment imposed by His Honour Judge Rundall sitting in the Crown Court at Worcester on 22^nd August 2008 following conviction by a jury of doing an act trending or intended to pervert the course of justice. The judge revoked an existing suspended sentence (imposed with conditions) but made no further order in respect of those matters. As it happens the appellant has subsequently been sentenced to a substantial consecutive term of imprisonment in relation to unconnected drug offences.
2. The question in this appeal is the extent to which a judge may take into account in sentence matters of evidence in a trial which tend to aggravate the offence but which comprise behaviour which could have been (but was not) charged as a separate offence and which is disputed by the offender.
3. The appellant had been charged with drug offences to which he had pleaded guilty. The case had been adjourned for a pre-sentence report. Pursuant to that the appellant attended at the Probation Service office. His case had been assigned to a qualified Probation Officer by whom he was interviewed. During the course of that interview he asked for a good report as he could not afford to be sent to prison. Unsurprisingly he was told that he would get a fair and balanced report on the basis of the available information. He repeated his entreaty and got the same response. He then said, "I've to a grand here" and displayed a carrier bag containing a large sum of cash. The officer sensibly brought the interview to a speedy conclusion and referred to her superiors.
4. In accordance with instructions that she had been given, the officer made a telephone call to the appellant some three days later. The purpose was to inform him that his report had been assigned to another officer. His response was hostile: "I am not happy with things that you said. Do you not like Asians?... are you racist? ……..I could have seen you right…..Well love I'm going to have to have a hit on you. A hit on you." In the course of the conversation he also referred by name to another in respect of whom this officer had not written a good report. That other was recognised by the officer as a high risk offence. The officer took these remarks very seriously and indeed moved home and offender.
5. When he was interviewed about these matters by the police, he denied issuing any of the above threats in a telephone conversation. He did accept, however, the conversation in interview. He said it was a light hearted joke and that he had the money coincidentally as rent money. He also alleged that she had first asked for £500 in cash.
6. The matter came on for trial. It was accepted that whilst the charge related to the interview in the office, the telephone conversation was admissible as evidence in rebuttal of his defence that it was all nothing more than a joke. The prosecution, no doubt for good reason, decided to abandon a separate charge to cover the telephone call. All the evidence was heard and the appellant was duly convicted.
7. In sentencing him, the judge took account of the telephone call. He said this –

"In your case there is a significant aggravating feature, in that you made threats to Miss Lawrence. I'm perfectly satisfied that after she told you she would no longer be preparing a report you made what can only be described as a gratuitous but serious threat, which she took very seriously. It had a significant effect on her; she was off work for several weeks and she was so frightened that she's had to move her place of work. It's perfectly clear from those of us who saw her yesterday in the witness box that that threat that you made several months ago is still affecting her.

The appellant says that the judge should have put the matter entirely out of his

mind. The prosecution contend that he was entitled to give proper weight

to it in his sentence.

8. The appellant's submission is simply that he should only be sentenced for that of which has been convicted and nothing more. Thus a man who pleads guilty to cultivating cannabis cannot be sentenced on the basis that he intended to supply it if not charged with that offence – see LAWRENCE (1981) 3 Crim. App. Rep. (5) 49. The matter is well illustrated, it is submitted, in the case of DAVIES [1998] 1 Crim. App. Rep (5) 380 where at p.382 Judge LJ (as he then was) says this –

'….it is not easy to see how a defendant can lawfully be punished for offences for which he has not been indicted and which he has denied or declined to admit. It is said that he trial judge, in the light of the jury's verdict, can form his own judgment of the evidence he has heard on the extent of the offending conduct beyond the instances specified in individual counts. But this, as was put in Hutchison 1972) 56 C.A.R. 307 at 309, is to "deprive the appellant of his right to trial by jury in respect of the other alleged offence." Unless such other offences are admitted, such deprivation cannot in our view be consistent with principle….'

9. The prosecution say that the judge was entitled to act as he did. They draw attention to the case of RIBAS (1976) 63 Cr.Appr.R 147 but that case is actually about drug smuggling where quantity rather than intent is the gravamen of seriousness and the court treated it as a contested issue of mitigation. Further they invite our attention to COOKE (1987) 9 Crim.App.Rep. (5) 116. There it was accepted that within the context of affray, the judge could from views about specific acts of violence without each having to be charged as a separate substantive offence. That approach may often be seen in domestic burglary: to ransack a house is to aggravate the offence without the need for additional charges of criminal damage. Other examples might include concealing a firearm after use or fleeing from the scene of a fatal accident.
10. In many of the examples or cases the aggravating conduct is either accepted or not disputed by the offender. In such circumstances there can be no objection to its being taken into account in sentence. Likewise matters may have been the subject of a NEWTON hearing which again may entitle a court to have regard to conduct which tends to aggravate sentence. However, there are recognised limits to a NEWTON hearing, one of which is in relation to conduct capable of sustaining a separate charge on which the verdict of a jury could be sought.
11. Here it is the case that the relevant conduct (the threats) whilst not the subject of a specific charge were the subject evidence deployed before the jury which the appellant was able both to challenge and to answer. Moreover it is most unlikely that a jury would have convicted him, given his defence, had they not accepted the evidence of threats. That said it is logically possible to have rejected both the threats and the appellant's explanation but it is unlikely. Thus whilst one does not have a criminal conviction in respect of the conduct (nor a special verdict), it is the fact that the evidence was before the judge and jury. The jury were very likely to have accepted it; the judge had every opportunity to evaluate it. Certainly at all times the appellant knew of its relevance and must have been aware of it potential relevance to sentence.
12. Nothing in this judgment is intended to cast doubt upon the general proposition that no-one should be sentenced for criminal conduct in respect of which he has neither accepted it nor been convicted. Moreover nothing in this judgment is intended to give comfort to the view that such conduct is capable of being established in a NEWTON hearing. Nevertheless where the conduct is relevant to a criminal charge being considered by a jury and where such conduct has been the subject of specific scruting in a trial then unless reliance on that conduct is inconsistent with a verdict, a judge should be able to take that conduct into account on sentence provided he is satisfied that it has been established to his satisfaction to the criminal standard. Clearly treating someone as having an intention to supply drugs is inconsistent with a conviction for simple possession or treating someone as intending to cause really serious bodily harm is inconsistent with a verdict for inflicting the same.
13. The court recognises that there may be areas of uncertainty. For example where a person is convicted of sexual activity in circumstance where they are in a position of trust, the consent of the victim is irrelevant. However, the absence of consent would be a seriously aggravating feature so far as sentence is concerned. We can see that that decision taken by the sentencing judge alone might well be thought to contravene the general principle. However, consent would not have been an issue specifically addressed in the trial. Here, however, the relevant aggravating feature was not only addressed but was a specific issue having regard to the nature of the defence. It is that fact which in our view permits the judge to have taken account of it here.
14. That said we have reached the view that nevertheless the sentence passed was manifestly excessive. We think there is merit in the analogy with criminal contempt which carries a maximum sentence of two years imprisonment. This conduct was indeed analogous to contempt given the position of a writer of a pre-sentence report in the criminal justice system. It was, as the judge rightly said, an extremely serious matter. We think it merited a sentence of 18 months imprisonment and to that extent this appeal succeeds. The judge's directions in relation to the community and suspended sentence will stand. Likewise his direction in relation to time spent on remand will also stand. To the extent indicated, this appeal is allowed.