McKenzie, R. v [2010] EWCA Crim 2441 (15 October 2010)

Neutral Citation Number: [2010] EWCA Crim 2441 Case No: 2010/1994/A7 IN THE COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand London, WC2A 2LL 15 October 2010 B e f o r e : LORD JUSTICE RICHARDS MR JUSTICE GRIFFITH WILLIAMS HIS HONOUR JUDGE ROOK QC (Sitting as a Judge of the CACD) ____________________ R E G I N A v KENNETH MCKENZIE ____________________ 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 7831 8838 (Official Shorthand Writers to the Court) ____________________ Mr S Blower appeared on behalf of the Appellant ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © LORD JUSTICE RICHARDS: On 27th November 2009 at Wolverhampton Crown Court, the appellant pleaded guilty to four counts of theft. On 11th February 2010 he pleaded guilty on rearraignment to one count of robbery. He was sentenced on 25th February 2010 by Mr Recorder Burbidge QC to four years' imprisonment for the robbery and to two years' imprisonment on each of the theft counts, concurrent with one another but consecutive to the sentence for the robbery. The total sentence therefore was six years' imprisonment. The Recorder was informed that the appellant had spent 174 days in custody on remand and he made a direction under section 240 of the Criminal Justice Act 2003 that that period should count towards sentence. It was subsequently established, however, that the appellant was not entitled to any credit for time on remand because he had been recalled to prison in relation to an earlier sentence. The case was then listed before His Honour Judge Warner who amended to nil the period to be credited under section 240. An appeal against sentence is now brought by leave of the single judge. The facts of the offences are these. In the evening of 21st August 2009 the appellant went to a petrol station in Wolverhampton. He entered the kiosk and asked the cashier for some change. As the cashier opened the till the appellant leaned across the counter. The cashier tried to slam the till shut. As he did so the appellant started throwing items that were on the counter at the cashier. One of them hit the cashier on the head. The appellant then jumped over the counter. The cashier did his best to get away by himself jumping over the counter, but the appellant grabbed hold of his leg and pulled one of his shoes off. The cashier was able to wriggle free and run outside. The appellant remained inside, forced open the till and took some cash before running off. The cashier was bleeding from the wound to his head. CCTV footage was recovered and the appellant was recognised by police officers who viewed it. On 2nd September 2009 in the early afternoon the appellant was in a queue in a convenience store in Wolverhampton when the till was opened by the cashier. He leaned over the counter and grabbed £130 in cash before running out of the store. Later on the same afternoon he entered an off licence and started to pay for a packet of mints, but when the till was opened he leaned over the counter and grabbed a bundle of notes. The cashier tried to stop him making good his escape by punching him but the appellant was able to retain possession of the money and run out. He took £100. Later that evening he entered a supermarket and approached the cigarette kiosk. He asked for 500 cigarettes. When the cashier turned his back in order to count out the packets the appellant leaned over the counter and stole packets containing 400 cigarettes worth almost £155 and ran out. On the same evening, a little later still, he entered a kiosk at a garage. Two cashiers were serving customers from behind the reinforced glass door. One of them became aware that the appellant was trying to force open the door. He used such force that the door splintered. He demanded money from the cashiers. They thought he was going to get into the counter area and attack them so they asked him to stop, opened the tills and handed him £150. He was arrested later that evening. He denied the offences in interview. The appellant is 48 years of age. He has a very long criminal record including 66 previous convictions for theft and two for robbery, but the first of those was in 1985 and the second in 1998. He also had convictions for an offence of wounding with intent and other offences of assault. He was assessed in the pre-sentence report as posing a very high risk of reoffending and a high risk of harm to the public. It was said that in order to reduce those risks he needed to address his misuse of drugs. He had ongoing mental health issues, including schizophrenia, which were related to his misuse of drugs. In sentencing him, the Recorder observed that in August and September 2009 the appellant had gone on a spree of offending to fund his addiction to cocaine. This meant that cashiers at petrol stations and small shops were at risk of being attacked by him. The robbery counts show that if someone resisted he would use violence to obtain money. He had an appalling record. His actions put people in fear. It was noted he was a persistent offender. It was accepted that the robbery was not the most serious of its kind but it was his persistence and the risk he put others under of being frightened and subjected to violence that were of concern. The Recorder decided that the offences did not justify a finding that the appellant was dangerous. He said that the appellant was entitled to some but not to full credit for his plea of guilty to the robbery count. On that count the Recorder took a starting point of five years and reduced the sentence to four years for the plea. He gave full credit for the appellant's pleas on the theft matters. It is said by way of concession on the appellant's behalf in the written submissions that have been lodged that the robbery falls within the intermediate category in the guidelines, which has a starting point of four years' custody and a range of two to seven years, and that the element of premeditation and the appellant's record constitute aggravating factors. It is also said that the thefts should be considered by reference to the guidelines on theft from the person and that the last of the thefts falls within the highest level of those guidelines, with a starting point of 18 months and a range of 12 months to three years, and that the appellant's record is again an aggravating factor. Looked at individually, and having regard to those concessions, it is plain that the sentences cannot be the subject of any complaint. It is submitted, however, that the sentences for the first three thefts were substantially in excess of those merited by the seriousness of the offences (though this would make no difference to the total sentence), that all the offences ought to have been treated as a single course of conduct attracting concurrent rather than consecutive sentences, and that in any event the total of six years is too long. For our part we do not accept that the judge was in error in imposing consecutive sentences for the theft offences. It might also have been open to him in this case to deal with the matter by way of concurrent sentences for all the offences, but in that event we would have expected him to impose a higher sentence than he did for the robbery count, so as to reflect the additional culpability arising from the theft offences. It is in reality the total sentence on which the focus must fall. As to that, we do not accept that a total of six years, having regard to the credit due to the appellant for his pleas, is excessive in all the circumstances. This was a serious course of offending and the appellant's appalling record is a serious aggravating factor. The Recorder was entitled not to make a finding of dangerousness, but there are real causes for concern about the appellant's conduct. The matter does not, however, end there. The Recorder thought that the appellant had served 174 days on remand which would and should count towards the sentence to be served. That was the basis on which he sentenced, including the direction he gave under section 240 of the Criminal Justice Act 2003 in respect of the 174 days. Section 155 of the Powers of Criminal Courts (Sentencing) Act 2000 confers a power for the sentence to be varied either upwards or downwards, but it provides in terms in subsection (4) that a sentence shall not be varied under the section except by the court constituted as it was when the sentence was imposed. That means that the power to amend the direction concerning the 174 days was vested in the Recorder as the sentencing judge, not in another judge. Yet it was another judge, Judge Warner, who purported to exercise the power so as to reduce to nil the period of credit under section 240. It seems to us that Judge Warner's order was not itself a lawful order and should not be allowed to stand. It is too late for the matter now to be dealt with by the sentencing Recorder so as to correct the erroneous basis upon which he made the original direction. Equally, however, we cannot properly leave in place a direction that 174 days served on remand is to count towards sentence when it is now agreed that the period that ought to be credited is nil. In deciding what to do we must also have regard to the provision of section 11(3) of the Criminal Appeals Act 1968 that the court should exercise its appellate powers with regard to sentence so that taking the case as a whole the appellant is not more severely dealt with on appeal than he was by the court below. The solution to all of this, in our judgment, is as follows. We will reduce the appellant's sentence on each of the theft counts by one year, but will quash the Recorder's direction that the 174 days on remand are to count towards sentence. That way we rectify the error, we meet any expectation created (albeit erroneously created) by the judge's direction crediting the 174 days, and we produce a result that is marginally less severe than that resulting from the judge's original order. Accordingly, this appeal is allowed to the extent of quashing the two year sentences on the four counts of theft and substituting sentences of one year's imprisonment on each of those counts, still consecutive to the four years on the robbery count and thus producing a total sentence of five years. In addition, the direction as to days on remand which are to count towards sentence is quashed. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII