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:

(Ct 3) – Attempted robbery of a woman car driver of her car on 6 April 2005.

(Ct 4) – Robbery of a second woman of her car the same day.

(Ct 5) – Carrying an imitation firearm to commit the offence in count 4.

(Ct 6) – Handling a set of car keys stolen in an armed robbery of a woman by an unknown assailant.

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

2 Drug offences in July 1994 and 1996.

Violence

3 years 10 months imprisonment for two robberies in 1998: a knife was used in one of them.

6 months for resisting a constable on 3 November 2000.

4 ½ years for false imprisonment of and causing actual bodily harm to his then girl friend, with a weapon. He was released in August 2004.

Eleven offences of dishonesty.

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:

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:-

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.