Kerrigan & Anor, R. v

Neutral Citation Number: [2014] EWCA Crim 2348 Case No: 201401939 A8; 201402047 A1 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL B e f o r e: Date: Tuesday, 28th October 2014 THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION LADY JUSTICE HALLETT MR JUSTICE SPENCER MRS JUSTICE PATTERSON DBE - - - - - - - - - - - - - - - R E G I N A v DAVID JOSEPH KERRIGAN NICHOLAS WALKER - - - - - - - - - - - - - - - Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - Mr C Blatchford appeared on behalf of Kerrigan Mr J Dyer appeared on behalf of Walker Mr P Lodato appeared on behalf of the Crown - - - - - - - - - - - - - - - J U D G M E N T 1. THE VICE PRESIDENT: These two otherwise unconnected appeals have been heard together this morning because they raise the same issue. The appellants have leave to argue whether they were entitled to credit for time spent in custody awaiting sentence which coincided with time spent in custody having been recalled on licence. Walker 2. Walker was born on 29th August 1992. He was aged 20 on conviction, he is now 22. He had one previous conviction for aggravated burglary. In 2010 he committed an extremely serious offence of burglary of an isolated farmhouse occupied by an elderly couple. This offence was committed jointly with Stephen Killip. In April 2011 he was sentenced to 44 months' detention. On 30th July 2012 he was released on licence with a condition of non-association with Killip. On 24th February 2013 Killip committed an unrelated offence of grievous bodily harm. On 26th February 2013 both the appellant and Killip committed the instant offence of attempted robbery. 3. 4. 5. 6. 7. 8. The facts are that the appellant provided Killip with a large hunting knife and drove him to a petrol station on the A590 in Cumbria, where he waited for him to commit a robbery in the station shop. At around 1.30 pm Killip entered the shop, wearing ski gloves and a full stocking-type head covering, and holding the knife. He stood five feet from Michelle Rawlinson, the only member of staff present. He threatened her with the knife and demanded cash. Terrified, she screamed. This drew the attention of a mechanic working nearby. Killip ran off and was driven away from the scene by the appellant Walker. Following the attempted robbery police were able to locate Walker quite quickly and arrest him. His vehicle was searched and various items recovered, but at that time not the knife. Messages on Walker's phone implicated Killip. Walker was charged and remanded in custody. He was then recalled to prison on 28th February 2013. Efforts were made to trace Killip, and after several days he was located and arrested for the robbery and another matter. He denied both offences put to him but he too was recalled to prison on licence. The investigation continued in relation to forensic examination of the items that had been found, as well as analysis of telephone traffic and cell site data. At the same time another police force was investigating Killip for a serious assault. This all caused some difficulties for the officers investigating the attempted robbery in gaining access to Killip in prison. On 21st May 2013 the appellant pleaded guilty to the offence of attempted robbery. That summer the knife was recovered from the vehicle in which it had been hidden and police gained access to Killip in prison at last to interview him. He too was charged with the robbery. On 17th February 2014 Killip pleaded guilty to the attempted robbery. On 19th February 2014 he pleaded guilty to the separate offence of grievous bodily harm and was committed for sentence. 9. On 3rd April 2014 both Walker and Killip appeared for sentence before Her Honour Judge Beech. During the course of submissions the judge was invited to allow the appellant credit for the time he had spent in custody. In rejecting those submissions she observed: "In respect of both of you it has been submitted that the court should take into account the time that you have spent in custody on recall on licence. The court rejects any suggestion that your sentences should be reduced to reflect that fact. The reason that the court rejects it is because the requirement to spend that part of a sentence outstanding at the time when you commit a further offence is an inevitable consequence of offending which is spelled out clearly to offenders when they are sentenced. Being released from custody and remaining on licence is not a right. It is a permission which is a qualified permission and continues to be earned providing you continue to be of good behaviour, which neither of you were." She also concluded that both Walker and Killip met the criteria for dangerousness. 10. The appellant received an extended sentence of 98 months: 50 months with an extension of 48 months. Killip received an extended sentence of 11 years six months and a five year extension for the offences of grievous bodily harm and attempted robbery. 11. 10th October 2014 would have been the sentence expiry date for the original offence of aggravated burglary. The appellant Walker now has a conditional release date for the attempted robbery offence of 10th January 2017 and an expiry date for that sentence of 1st June 2022. 12. Grounds of Appeal for Walker 13. Mr Dyer's grounds on behalf of Walker fell into three categories. First, he argued that the sentence was manifestly excessive in that it failed to give sufficient weight to the mitigating factors. In particular the judge should have placed greater emphasis on the facts: (i) this was an attempt, not the full offence; (ii) despite the aggravating features in this case, it was not one which came towards the top of category 2 in the sentencing guidelines; (iii) although there was some planning, there was no sophistication in the execution of the plan; (iv)there was no additional aggravation in the fact that two offenders were involved because only one of them went into the shop; SMITH BERNAL WORDWAVE (v) the co-accused was in the shop for seconds only; (vi)the appellant pleaded guilty at the plea and case management hearing; (vii) he expressed his remorse. 21. The second category consisted of a challenge to the finding of dangerousness. Mr Dyer argued that the finding and the imposition of an extended sentence were not justified because: (i) in contrast to his co-accused, there was no established pattern of violent offending; (ii) the appellant had never caused serious harm to anyone; (iii) the appellant was involved only as an accessory to the attempted robbery, (iv)no actual violence was used; (v) it could not be said, therefore, that there was a substantial risk of serious harm as a result of further specified offences. 27. In his third category Mr Dyer focussed on the effect of recall. Mr Dyer observed that the appellant Walker had served approximately ten and a half months in custody for breach of his licence prior to sentence. There was a significant delay between his plea of guilty and his sentence which was not his fault. 28. The basic principle of sentencing offenders to custody is that a custodial sentence shall be for the shortest term which in the opinion of the court is commensurate with the offence committed (see section 153(2) of the Criminal Justice Act 2003). A court should always consider the total period of time that a defendant will spend in custody from the date of recall and decide whether any adjustment should be made to the sentence. This was said to be particularly important where it is only the new offence which has put the offender in breach of his licence, the delay is outside his control and the breach of licence has been treated as an aggravating feature of the new offence. 29. Mr Dyer foresaw entirely arbitrary results if judges simply ignore the length of time that an offender spends in custody while effectively serving two sentences. Some defendants may effectively serve little or nothing by way of an additional punishment for the new offence; others may serve many months which will not count towards the sentence for the new offence as the appellant did. 30. Mr Dyer criticised the judge for failing to understand that the appellant was not bound to serve the whole of the balance of his original sentence. He submitted the judge was obliged to take account not only of the fact that the new offence was committed in breach of licence, but also of the effect of the delay before he was sentenced. He rejected the notion that Walker brought the delay upon himself by continuing to SMITH BERNAL WORDWAVE associate and offend with his co-accused. He contended the delay was all to do with the proceedings against the co-accused and totally outside his control. 31. In summary, he complained that the appellant Walker has been suffered undue prejudice the remedy for which is to make some reduction in the sentence. 32. The single judge was impressed by only one of those grounds, the last. He observed: "I have considered the papers in your case and your grounds of appeal. You pleaded guilty at the first opportunity to a serious offence of attempted robbery. In my view, the aggravating factors identified by the judge amply justified a sentence, after trial, of six and a half years. You received 25% credit for your guilty plea at the [plea and case management hearing] and a further 10% reduction because it was an attempt rather than the full offence. In my view, the judge was also fully entitled to conclude that you were a "dangerous" offender, for the purpose of the relevant provisions, and that an extended sentence was called for." 33. With those observations we whole-heartedly agree and we can dispose of the grounds rejected by the single judge swiftly. Compared to some, the appellant Walker's criminal record may have been relatively short, but the offences were serious and suggested a very worrying trend. Having considered all relevant aspects of the appellant's life, the author of the pre-sentence report concluded that Walker posed a high risk of serious harm to the general public. There was ample material to support that assessment and the judge cannot be criticised for reaching the same conclusion. 34. Thereafter the judge followed the guidance of the Sentencing Council to the letter. This was an attempted robbery that involved planning, the use of face covering and a lethal weapon to ensure the compliance of a vulnerable victim. The facts that the offence was committed when on licence for an earlier offence also committed with Killip, and which also involved the use of face covering, weapons and violence towards vulnerable victims, were significant aggravating features. They provided ample justification for the sentence passed, subject only to the issue of time spent in custody to which we shall return. Kerrigan 35. We turn to the facts in Kerrigan. Kerrigan was born on 5th May 1988, he is now 26. He had 17 previous convictions. Most recently, on 20th March 2011 was sentenced to three years' imprisonment for an offence of domestic burglary. He was released on licence at the halfway point on 19th September 2012. He committed an offence of robbery on 28th July 2013. 36. The facts of that robbery that are that the complainant, Matthew Starnes, was walking home at about 4.15 am from a nightclub in York. He became aware of two men on the opposite pavement walking slightly ahead of him. He overtook them and a few seconds later, Male 2 appeared at his shoulder, asking for a cigarette. The complainant said he did not smoke. The complainant then felt an arm around his neck from behind and he SMITH BERNAL WORDWAVE felt the grip tighten. This was Male 1. Male 2 said, "Put him to sleep, put him to sleep". As the complainant sank to the ground, he heard Male 1 say, "Punch him, punch him" and then felt several blows to his face from Male 1. Male 2 then said, "Tell us where your stuff is". The complainant lost consciousness for a few seconds. When he came round he could still see and hear the men. He checked his pockets and realised his belongings were missing. He reported the robbery at the police station and the loss of a £250 mobile phone, a set of keys and his wallet containing cash and bank cards. 37. At 4.52 am his girlfriend was woken by a missed call from his mobile phone. She called the number and a male voice said, "We have your boyfriend. If you want to see him again you will have to pay". She hung up. Shortly afterwards she called the number again on two occasions and, in response to her request to speak to the complainant, she was told by the person at the other end that they had him in the back of a car and if she wanted to see him again she would have to pay money, otherwise they would shoot him. At this stage she wisely called the police. 38. The appellant was identified from CCTV footage as one of the suspects. When officers attended his home they seized a SIM card which came from the complainant's phone. He was arrested and made no comment in interview. His suspected accomplice in the robbery was a young man called Shaun Chapman. 39. After being charged, Kerrigan was recalled on licence on 29th July 2013 to serve part or the remainder of the sentence for the burglary, with an expiry date of 20th March 2014. 40. On 12th August 2013 he indicated a plea of guilty to the robbery but still faced trial on two further counts of robbery allegedly committed in July 2013. On 25th November he appeared at York Crown Court for a preliminary hearing in relation to those other counts. Chapman also faced a trial on the charge of robbery. Following good sentencing practice, the judge adjourned all matters so that all offences and all co- accused could be dealt with together. 41. On 27th November 2013 the prosecution offered no evidence against Chapman. On 30th January 2014, at the plea and case management hearing for the two other counts of robbery Kerrigan faced, the prosecution did not oppose an application to dismiss one of them. Fresh prosecuting counsel was instructed to advise. On the basis of that advice, on 21st March 2014, the Friday before the trial of the remaining count, the prosecution formally offered no evidence. 42. The judge, the Recorder of York, His Honour Judge Ashurst, then proceeded to sentence on the Starnes robbery to which the appellant had pleaded guilty some months before. He sentenced the appellant to four years' imprisonment. His conditional release date is 20th March 2016, with a sentence expiry date of 20th March 2018. 43. Grounds of Appeal: Kerrigan 44. On Kerrigan's behalf, Mr Blatchford submitted that the sentence is manifestly in all the circumstances, particularly the return to prison. He complains that the sentencing SMITH BERNAL WORDWAVE judge failed to give Kerrigan any reduction in sentence for the time that Kerrigan had served between pleading guilty and being sentenced, some seven months later. This would equate to a 14 month custodial sentence. The delay in sentencing, Mr Blatchford argued, was entirely the fault of the prosecution and caused unfair prejudice to the appellant. The Crown Prosecution Service should have reviewed the two outstanding robbery counts at an earlier stage. Had they done so they would have offered no evidence significantly earlier. The appellant would have been sentenced earlier and he would have begun serving his sentence earlier. The sentence would have run concurrently with his recall to prison and he would have received limited additional punishment. Because of the delay the appellant has served a significant period of time on licence recall. His remand that has not counted towards his new sentence. The timing of events means that, but for one week of remand time, the court has effectively passed a consecutive sentence. This, Mr Blatchford reminded us, is unlawful pursuant to section 265(1) of the Criminal Justice Act 2003. 45. Legal framework 46. We turn to the legal framework. A helpful analysis of the complex statutory provisions governing this area of the law is to be found in the decision in Costello [2011] 1 WLR 638 and the judgment of Hughes LJ, Vice President of the Court of Appeal Criminal Division. The court considered the problem presented by the cumulative effect of sections 255A to 255D, 256 and 265 of the Criminal Justice Act 2003 and the repeal of section 116 of the Powers of Criminal Courts (Sentencing) Act 2000. We do not propose treading the same complicated ground in unnecessary detail. 47. In summary, the court concluded that judges do not have the power to ensure that an offender receives additional punishment for an offence committed during a period of release on licence. A judge may no longer order that a defendant be returned to prison to serve such remaining part of an existing sentence the court considers appropriate and a judge may not order that a sentence for an offence committed on licence should run consecutively to the original sentence. Further, any attempt to inflate the sentence for a later offence, as the judge did in Costello, would circumvent the effect of the enactment of section 265 and the repeal of section 116 and would be wrong. The court reached this conclusion unenthusiastically and suggested that consideration be given to reinstating the power formerly contained in section 116. In the meantime the court was forced to accept what it described as an unjust statutory anomaly. 48. Next, to calculate time spent remanded in custody as time served we must turn to the provisions of section 240ZA of the Criminal Justice Act as amended by the Legal Aid, Sentencing and Punishment of Offenders act 2012. Where relevant, it provides: "(1)This section applies where - (a) an offender is serving a term of imprisonment in respect of an offence, and (b) the offender has been remanded in custody (within the meaning given by section 242) in connection with the SMITH BERNAL WORDWAVE offence or a related offence. (2) It is immaterial for that purpose whether, for all or part of the period during which the offender was remanded in custody, the offender was also remanded in custody in connection with other offences (but see subsection (5)). (3) The number of days for which the offender was remanded in custody in connection with the offence or a related offence is to count as time served by the offender as part of the sentence. But this is subject to subsections (4) to (6). (4) If, on any day on which the offender was remanded in custody, the offender was also detained in connection with any other matter, that day is not to count as time served. (5) A day counts as time served - (a) in relation to only one sentence, and (b) only once in relation to that sentence. (6) A day is not to count as time served as part of any period of 28 days served by the offender before automatic release (see section 255B(1)). (7) For the purposes of this section a suspended sentence - (a) is to be treated as a sentence of imprisonment when it takes effect under paragraph 8(2)(a) or (b) of Schedule 12, and (b) is to be treated as being imposed by the order under which it takes effect. (8) In this section 'related offence' means an offence, other than the offence for which the sentence is imposed ('offence A'), with which the offender was charged and the charge for which was founded on the same facts or evidence as offence A. (9) For the purposes of the references in subsections (3) and (5) to the term of imprisonment to which a person has been sentenced (that is to say, the reference to the offender's 'sentence'), consecutive terms and terms which are wholly or partly concurrent are to be treated as a single term if - (a) the sentences were passed on the same occasion, or (b) where they were passed on different occasions, the person has not been released at any time during the SMITH BERNAL WORDWAVE period beginning with the first and ending with the last of those occasions. (10) The reference in subsection (4) to detention in connection with any other matter does not include remand in custody in connection with another offence but includes - (a) detention pursuant to any custodial sentence; (b) committal in default of payment of any sum of money; (c) committal for want of sufficient distress to satisfy any sum of money; (d) committal for failure to do or abstain from doing anything required to be done or left undone. (11) This section applies to a determinate sentence of detention under section 91 or 96 of the Sentencing Act or section 227 or 228 of this Act as it applies to an equivalent sentence of imprisonment." 49. These provisions were considered by the Divisional Court in Archer v Governor of HMP Low Newton [2014] EWHC 2407 (Admin). At paragraph 8 of the judgment Treacy LJ described the provisions in this way: "Section 240ZA retains the system that time spent on remand will continue to be credited but it removes the exercise of calculation from the sentencing court. What it does is to convert what was previously a task delegated to the sentencing judge into an administrative task to be carried out by the Prison Service as a calculation." He added at paragraph 10: "The position now is that there should be a clear cut, straightforward administrative calculation, not admitting of elements of discretion or judgment to be exercised by the Prison Service ... it [is] accepted that this is an automatic process." 50. Much to their relief, judges are therefore no longer responsible for calculating and announcing how many days spent on remand should count towards sentence. 51. Mr Lodato for the respondent, in his extremely helpful submissions, described the grounds of appeal in both cases as a call to return to the system whereby the judges did just that. He argued the appellants are asking in some form or another for judicial directions that time spent on remand for offences committed on licence should be counted as time served, notwithstanding that the time coincides with serving another sentence on recall. This, he submitted, would be in clear breach of the provisions. Section 260ZA could not be clearer: offenders have no right to receive double credit for time spent in custody in relation to two different matters. SMITH BERNAL WORDWAVE 52. Mr Lodato conceded that there may be circumstances where a sentencing judge may reduce the sentence she would otherwise impose to do justice on the particular facts and to reflect exceptional factors, such as lengthy delay. He took us to the provisions of Article 6 of the European Convention on Human Rights, which provides that proceedings must be concluded within a reasonable time and delay may count as a mitigating factor in some circumstances. However, he rightly pointed out that the reasonable time requirement is designed to protect against prolonged and unreasonable periods of delay that cause an accused person to remain too long in a state of uncertainty about their fate. The threshold is a high one. Accordingly, Mr Lodato asserted, with little or no dissent from the appellants' counsel, that it cannot be said that delay alone here breached the appellant's rights under Article 6. 53. In Dyer v Watson; K v HM Advocate [2004] 1 AC 379, Lord Bingham of Cornhill set out at paragraphs 52 to 55 the key principles to be applied. He observed: "In any case in which it is said that the reasonable time requirement ... has been or will be violated, the first step is to consider the period of time which has elapsed. Unless that period is one which, on its face and without more, gives grounds for real concern it is almost certainly unnecessary to go further, since the Convention is directed not to departures from the ideal but to infringements of basic human rights. The threshold of proving a breach of the reasonable time requirement is a high one, not easily crossed." We emphasise the words: “gives grounds for real concern”. However, that does not mean delay is irrelevant. In Mills v HM Advocate [2004] 1 AC 441, Lord Hope described at paragraph 54 that delay related grounds may justify an adjustment to sentence. He observed that one of the grounds would be the anxiety resulting from prolongation of the proceedings. The other "that (a defendant’s) life had changed during the period of the delay". 54. In the Attorney General's Reference No 79 of 2009 [2010] EWCA Crim 338, the Court of Appeal considered the effect of delay on sentence. At paragraph 19, Hughes LJ VP held that delay: "... is of relevance if not to a formal assessment of Article 6 then undoubtedly to the broader question of what a just sentence is when eventually and belatedly conviction occurs." However, he emphasised that applications for reductions in sentence would be unusual. 55. Relevant Principles 56. We extract from these decisions and the statutory provisions themselves the following principles relevant to these appeals: (i) A custodial sentence should be for the shortest term commensurate with the offence committed. (ii) A custodial sentence may be ordered to run consecutively to an existing SMITH BERNAL WORDWAVE sentence only if the offender has not been released on licence from the existing sentence. If the sentence is ordered to run consecutively the two terms will then be treated as a single term. (iii) If the offender has been released on licence from the existing sentence the judge may not order the subsequent sentence to be served consecutively to the existing sentence. (iv) A judge is not entitled to inflate a subsequent sentence to ensure a defendant receives additional punishment for the new offence. (v) The only power of recalling a prisoner on licence is held by the Secretary of State. (vi) It is the task of the Prison Service to calculate the number of days spent on remand for which credit should be given to an offender, it is not the duty of the judge; the Prison Service's calculations are open to challenge by way of judicial review. (vii)A day spent in custody counts as time served in relation to only one sentence. (viii) A judge retains the discretion to do justice on the particular facts of a case, for example in the case of excessive delay, and may therefore reduce an otherwise appropriate sentence accordingly. Conclusions 57. Applying those principles to the facts here, the appellants do not qualify for any automatic reduction in their sentences. They breached their licence, they were recalled to serve the balance, or part of the balance, of an existing sentence and they were, therefore, detained pursuant to a custodial sentence for most, if not all, the time they were on remand in relation to the subsequent offence. In those circumstances Parliament's intention is clear: a day counts as time served in relation to only one sentence. Section 240ZA prohibits double counting. Unless, therefore, the appellants can bring themselves within the judge's general discretion to do justice, the periods they spent on remand which coincided with time spent in custody on recall should not be counted twice. 58. We turn to the overall circumstances of both their cases and the effect of delay. We consider whether there has been any injustice that requires correcting. 59. First, we should observe that we are satisfied that neither appellant comes close to satisfying the high threshold for the breach of the reasonable time requirement. The delay in each case may not have been ideal, but it was far from excessive and there was a satisfactory explanation. The general principle is clear that, where possible, an offender should be sentenced for all outstanding matters at the same time and with any co-accused. SMITH BERNAL WORDWAVE 60. Second, we accept that the delay has meant the appellants have been prejudiced, but only in the sense that they cannot benefit from what the court has described as an “unjust anomaly”. They were well aware of the possible consequences of committing an offence on licence and their fate was far from uncertain. They may have had to wait rather longer than would normally be the case to know their ultimate fate, but throughout they could not have been in any doubt that they were to receive a further sentence of imprisonment of some length. As Mr Lodato observed, the ultimate sentences fell within a predictable and limited range of available sentences; any uncertainty was restricted to fine margins. 61. Thus, Walker's ten and a half months in custody for breach of his licence prior to sentence was the consequence of his associating with Killip and offending on licence, about which he had been warned. Had he not continued to associate with Killip and commit offences with him, he would not have found himself in the position he did. The delay therefore was in part due to his own conduct and in part due to the normal trial and sentencing process. 62. Similar considerations apply to Kerrigan. It might have been better had the prosecution been able to review the evidence in his case and his co-accused’s case to reach a decision on the progress of outstanding matters, but the delay was far from excessive. It was not of a kind which has caused the court concern in the way Lord Bingham described. 63. Accordingly, we can see no injustice in either case which would merit our interference and a reduction in their sentence. 64. Further, although each may well be behaving appropriately in prison, there is nothing to suggest that either has made exceptional progress or turned his life around during the course of the delay in his case. They have no legitimate expectations of any kind. 65. We are satisfied that the sentences were not excessive and the appeals must be dismissed. SMITH BERNAL WORDWAVE