Jarvis, R v

MRS JUSTICE DOBBS: On 28th August 1998, at the Wolverhampton Crown Court, this 39 year old appellant pleaded guilty on the first day of trial to one count of kidnapping, two counts of robbery and one count of rape. He was sentenced as follows: 10 years' imprisonment for the kidnapping; 5 years' imprisonment for each robbery concurrent to each other and the kidnapping and for the rape, life imprisonment with a minimum of seven-and-a-half years to be served under the provisions of section 2 of the Crime Sentences Act 1997. The total sentence therefore was life imprisonment, with a specified seven-and-a-half year minimum term. On 16th March 1999, the Single Judge refused leave to appeal sentence. The application was renewed before the Full Court, on 2nd July, which refused the application. He appeals against sentence in relation to the rape count only, on reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal act 1995.

The facts are these. At about 6.40 am on 13th January 1998 the complainant, a 26 year old married woman, was waiting at a bus station in Bearwood. The appellant approached her twice and asked when the bus was coming and where it was going. A few minutes later he returned to her again, grabbed the collar of her coat and pushed her into the bus shelter. He said she had to come with him and if she screamed he would cut her throat. He had a hook-shaped object, about two-and-a-half inches long, which later transpired to be a nail clipper. He forced the lady into a van about 100 metres away, took her rings, necklaces and earrings and bracelet. He asked whether she had any credit cards which she showed him and he then went through her purse and handbag.

He drove off, placing the complainant's hand between his legs and took her to three banks and made her use her credit card to obtain a total of £250 which he took. He held on to her tightly by the hand throughout and although she saw other people in the street she was too frightened to call for help.

He took her back to the van where he told her he needed the money because he was a "crackhead". He said that he had just been released and if he was caught he would do a "long stretch" so he may as well take everything she had. He took her to a number of other banks until the cards were declined.

At about 7.20 am he started to ask about her personal life and forced her to kiss him. He undid her blouse and bra, touched her breast and then forced her into the back of the van, telling her to keep her eyes shut. He pulled down her tights and underwear, cut them so her legs were free and raped her. He said he could not be bothered to finish off and got off. He wrapped either her underwear or tights round his fingers and inserted them into the complainant's vagina seemingly in an attempt to remove potential forensic evidence. He told her she could go, but that she must keep her eyes shut. As she walked away he told her not to look back, particularly at the number plate or he would run her over. She went to a nearby shop and the police were summoned.

The appellant was arrested on 14th January. The complainant tights were found in his van. DNA samples were taken.

He was interviewed over a period of three days and denied the offences.

The appellant has a number of previous convictions. The previous convictions between 1981 and 1984 were for mainly driving matters and offences of dishonesty. In 1985 he was convicted of rape, two offences of robbery, taking a child without lawful authority, taking a vehicle without consent, aggravated burglary and attempted robbery. He received a total of 12 years in custody. In 1993 he was convicted of manslaughter for which he received 7 years' imprisonment.

When sentencing, in the light of the appellant's previous convictions, particularly those for rape in 1986 and manslaughter in 1993, and the fact that the present offence had been committed while on licence for the offence of manslaughter, the appellant having been released approximately 10 years prior to the commission of the current offences in October 1997, the judge took the view that a sentence of life imprisonment under the Crime Sentences Act 1997 was appropriate. He found that the appropriate determinate sentence was 14 years. There was a specified period of between 7 years and 9 years and 4 months to be ordered and the period he took was 8 years. He indicated that the lowest it could have been was 7 years, which might have been available if the appellant had pleaded guilty at the earliest opportunity. In the circumstances the judge felt that he had given as much credit as he could. He went on to observe that this appellant had been in custody since 14th January 1998, and subject to licence recall until 19th May 1998 and for all practical purposes had been remanded for the current offences for 6 months. That would be deducted from the specified period of 8 years and therefore the minimum period the appellant had to serve would be seven-and-a-half years.

There are three matters that are raised by the Criminal Cases Review Commission and advanced by counsel. First of all, the discount for the plea guilty. It is submitted that the judge erroneously applied the discount to the specified period rather than taking it into account when setting the notional determinate period. Secondly, that it was inappropriate for the judge to set the specified period at more than half the determinate sentence, especially in the light of the fact he gave no reasons for so doing. He seemed to take the view that the onus was on the convicted person to show specific circumstances why the discount should be more than one-third, rather than taking half the determinate period as the starting point. Thirdly, that the judge wrongly took a rounding approach by converting the 208 days spent on remand to 6 months, the effect being that the appellant has only received 182 days' credit rather than 208 days credit.

Two further grounds were submitted by counsel for the appellant, namely the notional determinate sentence was too high, this point being rejected by the Commission, and secondly, that the life sentence was wrong in principle. This was also considered and rejected by the Commission. Both these two grounds have been rejected by the Single Judge and the time within which to renew the application for reconsideration has lapsed. It should be noted that none of these grounds were raised at the original application, back in 1999, when the Full Court refused leave. That application was purely on the question of the effect of Article 7 of the European Convention on Human Rights.

In the Criminal Cases Review Commission Statement of Reasons they set out a number of calculations to support the proposition that the eventual period specified may be too long in the light of the grounds now advanced. We hope not to get bogged down in "what if" calculations when dealing with the real question to be decided, namely whether the sentence is manifestly excessive or wrong in principle.

There can be no doubt that the life sentence was not wrong in principle and that is why leave to appeal has been refused and no doubt why counsel previously instructed in the first application conceded as much before the Full Court. Counsel, realistically, has advised as such in his advice on appeal. The appellant qualified for an automatic life sentence by virtue of two qualifying offences, committed on two separate occasions, namely rape and manslaughter. The instant offences being committed within 10 weeks of his release from the sentence of 7 years for manslaughter, means that he committed offences on licence.

We turn to the question of the specified period. It is apparent that the learned judge intended to give credit for the plea of guilty and mitigation generally. There is no doubt that he failed to give reasons as to why he was not taking the usual half of the notional determinate sentence as the specified period. He seemed to be of the impression that the question of credit and plea was relevant to that exercise as opposed to other factors.

Was the notional determinate sentence of 14 years too long? Although leave has not been granted on this issue it needs to be dealt with in order to put our findings into some perspective. We can take this shortly. It was not. Even the Criminal Cases Review Commission came to the conclusion that there was no real possibility that the Court of Appeal would conclude that this figure was manifestly excessive.

We turn therefore to the question of discount for plea and the appropriate specified period. The judge intended to give as much credit as he could for the plea of guilty and other matters albeit that the plea was entered at the last moment. What he did in fact was to take the two-thirds point of the 14 year determinate period, namely 9 years and 4 months and then discounted it by 1 year and 4 months for the plea and mitigation.

When sentencing he was not made aware of the case of R v Marklew & Lambert [1999] 1 Cr App R(S) 6, which although not officially reported had been decided. That case indicated, that the general approach to be taken, was by taking half of the determinate period which had been passed. However, the Court noted that there may be circumstances where it would be appropriate for the judge to exercise his discretion based on the facts of the particular case to fix a period which was more than half and up to two-thirds. Reasons for so doing should of course be given.

Counsel for the applicant relies on the subsequent case of R v Szczerba [2002] EWCA Crim 440, decided some 3 years after the sentence of the appellant, in which the Court of Appeal confirmed that whilst this was an area in the judge's discretion, the use of any period over one-half of the notional determinate sentence should only be used in exceptional circumstances. It was originally submitted by the appellant, contrary to the findings of the Criminal Cases Review Commission, that exceptional circumstances do not apply here. Counsel, realistically, today has conceded that such circumstances do apply.

In our view, this is a case where exceptional circumstances did exist to justify the judge departing from the usual one-half starting point - that is the commission of offences whilst on licence.

The error of the judge was his articulation of what he was doing. This has led to the confusion as to whether he has given proper credit for the plea of guilty and other mitigation. Additionally, he did not indicate why he started with the two-thirds figure, rather than starting at the halfway figure and considering if there were reasons to increase the period.

Another factor in this case was, had there been a determinate sentence, the judge could have and no doubt would have ordered at least some of the 524 days which was still outstanding from the 7 year sentence for manslaughter to take effect before the sentences for rape and the other offences. He noted that the offences were committed on licence which no doubt is a matter he had in mind when coming to the conclusion that a life sentence was appropriate. He may also have had it in mind when working from the two-thirds figure although again, this was not articulated.

In our judgment, it is regrettable that the various matters such as what percentage the discount had been and what point the specified period kicked in, were not clarified with the learned judge at the time. It would have helped to give this Court a clear indication of what his intention was.

Doing the best we can and in the light of the uncertainty of approach adopted originally, we propose to do the following: we have already indicated that a sentence of life imprisonment and a starting point of 14 years were appropriate. We intend to make a 30% discount from that starting point of 14 years, which very roughly speaking adds up to 4 years and 2 months. That will be deducted from the period of 14 years, making a notional determinate period of 9 years and 10 months.

As we have already indicated, the two-thirds specified period was, in our judgment, appropriate. Using that figure, that makes a period of 6 years and 6 months. From that has to be deducted the period of 6 months and 25 days, and no doubt counsel will be able to correct the maths, but this makes a specified period of 5 years 11 months and six days. To that extent, this appeal against sentence is allowed.