Shaffi, R. v

Zulfiqar Shaffi is aged 32. This is his appeal with the leave of the single judge against a life sentence of imprisonment passed by the Recorder of Bradford on 30 September 2005 under the provisions of s.225 of the Criminal Justice Act 2003. (CJA). He had pleaded guilty on 18 July 2005 to 4 counts in the indictment:

At all material times he has been addicted to illegal drugs, especially “crack” cocaine and has a substantial criminal record as follows:-

On 4 April 2005, two days after the coming into force of the CJA, and eight months after the appellant’s release from a long prison sentence, the appellant attempted to rob two women aged 63 and 44 of their car in a supermarket car park in Bradford. At one stage he tried to drive the car away with the older woman in it, saying “this is an armed robbery” though no weapon was seen. This lady resisted the appellant and the shouts of both women alerted shoppers: the appellant then got out of the car and ran off.

Twenty minutes later the appellant, armed with an imitation firearm, actually robbed a 22 year old woman driver of her car in a public car park in Bradford. He pulled her out of the vehicle and drove off. The victim’s 19 year old sister was also in the car at the start of the offence.

Two of the four women who were victims of these two offences made victim impact statements. E.L. aged 44 (count 3) and T.Y. 22 years old (count 4) stated that the offences were very frightening and resulted in insomnia and similar problems, such as loss of confidence in themselves and unwillingness to return to the scenes of the offences.

Though victim T.Y. also said that her doctor was to refer her to a psychiatrist in respect of her insomnia and headaches, no medical evidence of any kind was before the sentencing judge nor is there any before us. There is no question in this appeal of any physical harm to any victim.

We have been considerably assisted by Mr David McGonigal’s, submissions. We adopt his analysis of the best approach to the statutory provisions.

The first section of the CJA to be examined is s.225 in chapter 5 of the CJA. This provides:

“225 (1) This section applies where –

(a)

a person aged 18 or over is convicted of a serious offence committed after the commencement of this section, and

(b)

the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.

(2)

If –

(a)

the offence is one in respect of which the offender would apart from this section be liable to imprisonment for life, and

(b)

the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life,

the court must impose a sentence of imprisonment for life.

(3)

In a case not falling within subsection (2), the court must impose a sentence of imprisonment for public protection.”

The remainder of the section is irrelevant for the purposes of this appeal.

There is no argument whether or not these offences are serious and specified offences. However “serious harm” is defined by s.224(3) as death or serious personal injury, whether physical or psychological.

S.229 applies where the court has to assess, under s.225, whether there is a significant risk to members of the public of serious harm occasioned by the offender committing further such offences. S.229(3) requires the court to assume that such a risk exists unless it considers, after taking into account all the information set out in the subsection, that it would be unreasonable to conclude that there was such a risk.

Mr McGonigal began by conceding that it would not be unreasonable to conclude that in this appellant’s case there was evidence of a significant risk of further offences. But he contends that the sentencer was wrong to find there was risk to the public of serious harm. He buttresses his argument by submitting:-

(a)

there was (and remains) no medical evidence before the court: the psychiatric report before the judge was virtually silent on the question of risk.

(b)

the judge asked himself the wrong question at p.7 line 11 of his sentencing reasons by speaking of the lack of “guarantee” that he would not re-offend.

(c)

the judge paid insufficient attention to the statutory requirement that serious harm had to be demonstrated.

(d)

that R v Lang 2005 EWCA Crim 2864 at paragraphs 11 and 17(iii) makes it clear that whereas the foreseen offences may be serous it did not necessarily follow that there would be the risk of serious harm (per Rose LJ,VP) He also relied on the facts of Lang’s own case [see paragraph 36 of the judgment].

(e)

the appellant’s previous convictions did not demonstrate serous harm was occasioned and that was so even when he did have a weapon (a knife and screwdriver in the two cases of such possession).”

Our conclusion upon the primary submission.

We conclude there is force in counsel’s submission. The first question for us is whether any victim in the instant cases suffered “serous psychological harm” within s.224(3) which in turn governs the assessment of the appellant’s “dangerousness” required by the Act. Though we are mindful of the effects of these offences upon the victims, it is impossible to say the evidence establishes serious psychological harm to any of them. Nor do we see significant evidence of such harm in the past offences. We are of the view that the judge gave insufficient weight to this aspect of the case and it also appears from page 7 of his sentencing reasons that he was setting too high a benchmark on the question of future risk. We of course appreciate that he did not have the benefit of R v Lang at the time of sentencing.

We therefore accept Mr McGonigal’s submission that the “significant risk of serious harm” criterion in s.225(1)(b) is not met. Accordingly it is unnecessary to go on to consider whether the appellant qualifies under s.225(2) for a life sentence or merely a sentence of imprisonment for public protection (IPP). We do however record that Mr McGonigal’s further submission was that, in the event that we found that the criteria in s.225(1) were met, the offences did not justify a life sentence under s.225(2)(b). We agree. This court in Lang was of the view that the wording of the subsection indicated that the test in R v Chapman [2000] 1 CAR(S) 377, following R v Hodgson (1968) 55 CAR 113 continues to apply.

The statutory criteria were not met in this case for either a life sentence or a sentence of IPP. What was required was a lengthy determinate sentence.

The judge having decided, erroneously in our view, that a life sentence was appropriate went on to say that a determinate sentence of 13 years would have been appropriate made up by consecutive sentences of 5, 7 and 1 year on counts 3, 4 and 6 with a concurrent sentence of 3 years on count 5. Having taken into account the period spent in custody he directed the period to be served before consideration for parole to be 6 years and 10 days.

A sentence of 13 years equated to a sentence following a trial of at least 18 years. Mr McGonigal submitted that the judge’s starting point was simply too high. We feel compelled to agree. In our view a lower starting point was appropriate namely one of 14 years. Having given due discount for the plea of guilty and remorse we think the correct determinate sentence is one of 10 years imprisonment. In reaching this figure we have taken into account the use of an imitation firearm (count 5) which would ordinarily attract a consecutive sentence. It is of little comfort to a victim that the firearm with which she is threatened turns out to be imitation rather than real.

In the result the appeal is allowed to the extent that the life sentence is quashed. There will be concurrent determinate sentences of 10 years imprisonment on counts 3, 4 and 5 with a 1 year concurrent sentence on count 6. He is to receive credit for the time spent in custody on remand which according to the sentence passed by the judge appears to have been 173 days. 173 days is therefore to count towards his sentence. The period that must be served therefore is 4 years and 192 days.