Martin, R. v

Neutral Citation Number: [2004] EWCA Crim 1795 IN THE COURT OF APPEAL CRIMINAL DIVISION Case No: 200400898/A6 Royal Courts of Justice Strand London, WC2 Date: Wednesday, 9th June 2004 B E F O R E: LORD JUSTICE JUDGE (Deputy Chief Justice of England and Wales) MR JUSTICE HOLLAND MR JUSTICE COLMAN - - - - - - - R E G I N A -v- MARK ANTHONY MARTIN - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MISS J KINKADE appeared on behalf of the APPLICANT - - - - - - - J U D G M E N T SMITH BERNAL WORDWAVE 1. Mr Justice Colman: On 10th December 2003 before magistrates the applicant pleaded guilty to burglary and was committed to the Crown Court for sentence under section 3 of the Powers of Criminal Courts (Sentencing) Act 2000. He also pleaded guilty to driving whilst disqualified and using a vehicle without insurance. He was committed to the Crown Court for sentence under section 6 of the Powers of Criminal Courts (Sentencing) Act 2000. In addition he was in breach of an early release licence from a total sentence of three years' imprisonment imposed at Middlesex Guildhall Crown Court on 18th April 2001 for offences of burglary and handling stolen goods. On 22nd January 2004 at the Crown Court at Blackfriars he was sentenced by His Honour Judge Pontius as follows: for breach of the licence to serve a balance of three months' imprisonment; for the burglary offence, three years and six months' imprisonment consecutive; on the driving whilst disqualified offence, six months' imprisonment consecutive and disqualified from driving for five years and an extended retest to be taken. On the third offence of using a vehicle without insurance no separate penalty was imposed. The result was a total sentence of four years and three months' imprisonment. 2. 3. 4. 5. 6. 7. 8. The applicant is now aged 31. He renews his application for leave to appeal against sentence and for a representation order after refusal by the single judge. As to the first offence, the burglary, the facts may be summarised as follows. On 29th September 2001 the occupier of a property in London W12 returned home to find it had been burgled. All the drawers of a desk in an upstairs room used as an office had been pulled out. The filing cabinet had been forced and there was blood on the desk. In the bedroom it was discovered that the bay window had been smashed and clothes and jewellery had been pulled out the cupboards. Glass was all over the room. There was also blood on a light switch in the downstairs hallway and on the curtains in the living room. Items to a total value of £1,053 were stolen. A DNA profile was obtained from the blood at the scene which matched that of the applicant. As to the driving whilst disqualified offence, on 9th December 2003 the applicant was stopped by a police officer on the Uxbridge Road while driving a moped. When questioned he initially told the police that the moped belonged to a friend. A vehicle check revealed it had been stolen. The applicant was asked if he was disqualified. He replied that he was and was arrested. He made no comment in interview to all questions. In the course of his sentencing remarks the judge observed that there was to be some credit for pleading guilty, but in view of the DNA evidence it was plain that there was no defence in respect of the burglary. As to the driving whilst disqualified offence, equally it was clear that the applicant knew that he was disqualified and there was no defence. As to previous convictions, the applicant had been sentenced for burglary of homes and for driving whilst disqualified in the past on many occasions. As to burglary, in 1994 he had received a sentence of 18 months, in 1996 of 30 months and in 2001 of two years. In 1997 and 1998 on two occasions and in 2002 he had received sentences for driving whilst disqualified: periods of imprisonment ranging from two months to five years. The offences in question were committed whilst he was on licence. The probation officer reported that, although the applicant was ready to undergo drug treatment, there were concerns about his current level of motivation. The judge said he was satisfied that there was an obvious lack of commitment on his part and that the public ought to be given as much protection as possible. It is submitted that the imposition of the six month sentence for driving whilst disqualified was excessive, because, although the judge was entitled not to give credit for the plea of SMITH BERNAL WORDWAVE guilty, nonetheless the effect of a six month sentence for this offence, it being accepted that the sentence of three and a half years' imprisonment for burglary was not manifestly excessive, was to increase the overall sentence to four years, the crucial borderline, and consequently the effect of the six month sentence was to increase the actual time to be served by the applicant by the substantial period of a further six months. 9. Having carefully considered these submissions, we are not persuaded that the totality of sentence given in this case was clearly excessive. The applicant had a seriously poor record not only for burglary but particularly for driving whilst disqualified. He had offended again and again. In the view of this Court the judge was entirely justified in imposing a sentence, notwithstanding that, firstly, he did not give credit for a plea of guilty on the driving whilst disqualified offence and, further, that the effect of his not doing so was to take the totality of sentencing up to four years and three months. 10. In these circumstances this application is refused. SMITH BERNAL WORDWAVE