Ashes v R.

By Chapter 5 of the Criminal Justice Act 2003 (“ the 2003 Act”) , provisions were made to impose indeterminate sentences for public protection on offenders if the court considered that there was “a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences” (section 225(1) of the 2003 Act). Such sentences comprised a specified minimum term which was one-half of the sentence which would otherwise have been imposed as a determinate sentence less the time spent by the offender in custody prior to sentence for that offence but the release of the offender would only take place after first he had served the specified minimum term and second thereafter only when the Parole Board considered it safe to release the offender.

Stephen Ashes received a sentence of imprisonment for public protection on 1 December 2006 and he appeals against this sentence with the leave of the single judge. On 3 May 2007, this Court adjourned the appeal of Steven Ashes so that at a subsequent hearing a separate division of this court could determine:

The question of whether a court should pass an indeterminate sentence, such as an extended sentence or an order for public protection, on an offender, who is already serving an existing determinate term, has been the subject of a number of recent decisions by this court. Those authorities were considered in the recent case of R v C and others [2007] EWCA Crim 680 in which Latham LJ, the Vice-President of the Court of Appeal Criminal Division when giving the judgment of this court, explained at paragraph 19 that:

“.a. There is nothing unlawful about the imposition of a concurrent or consecutive sentence within either regimes relating to extended sentences, and indeed, as explained by Hooper LJ in R –v- O'Brien et al [2006] EWCA Crim 1741, where sentences of life imprisonment or imprisonment for public protection are imposed under chapter 5, this court will not interfere where extended or indeterminate sentences were justified, unless the practical result is manifestly excessive, or for some reason gives rise to real problems of administration.

b.

Nonetheless, judges should try to avoid consecutive sentences if that is at all possible and adjust the custodial term or minimum period within concurrent sentences to reflect the overall criminality if that is possible within other sentencing constraints.

c.

If consecutive sentences are considered appropriate, as in the example that we have already given, or necessary, if one or more of those sentences are determinate sentences, the determinate sentences should be imposed first, and the extended sentence or sentences expressed to be consecutive.

d.

In shaping the overall sentence, judges should remember that there is no obligation for the sentences to be expressed in historical date order. There is nothing wrong with stating that the sentence for the first offence in point of time should be served consecutively to a sentence or sentences imposed for any later offence or offences.”

The reasons why a court should try to avoid imposing sentences consecutive to an indeterminate term for public protection were explained by Hooper LJ when giving the judgment of this court in R v O’Brien and others [2006] EWCA 1741, [2007] 1 Cr. App R (S) 75 when he said that:

“59...it is undesirable to impose consecutive indeterminate sentences or order an indeterminate sentence to be served consecutively to another period of imprisonment. Common sense suggests that a sentence of life imprisonment or of IPP starts immediately on its imposition. Given the difficulties that may be encountered already in determining when a prisoner must be released or is eligible for parole, it seems to us to be much easier not to compound those difficulties by making indeterminate sentences consecutive to other sentences or periods in custody”.

The answer to question A is that the court should try to impose a term for the sentence for public protection which is concurrent with the existing determinate sentence but which also takes account of:

We stress that the sentencing judge should bear in mind that the period imposed in the sentence for public protection is the period which the offender must serve before he or she is considered for parole and that means that the constituent period to be taken into account for ascertaining the determinate sentence at stage (a) above is the period remaining to be served (which is now one-half of the sentence) rather than the total sentence imposed.

In the ordinary way, in cases in which the appropriate sentence would be a consecutive sentence to the sentence for public protection, there is a serious problem because a sentencing judge considering imposing such a sentence does not know when the existing sentence for public protection will expire as he or she cannot predict when the Parole Board will agree to release the offender. A further difficulty is that even if the offender might be safe for release at the end of the sentence for public protection, there is no guarantee that he or she will also be safe to be released at the end of any consecutive determinate sentence Thus problems arise first as to how to shape a sentence which would overcome this difficulty second in ascertaining the date when the sentence for public protection ends and when the determinate sentence starts.

There are three possible approaches depending on the circumstances and they are;

Our provisional view is that when dealing on a subsequent occasion with a further offence, the sentencing court should impose an appropriate concurrent sentence, be it determinate indeterminate or extended, depending on the circumstances. In any event the Parole Board would be able to take into consideration the subsequent offence in determining whether to release the offender. The facts of this appeal do not require us to reach a concluded decision on this issue and we consider that it would be more appropriate to await a case in which this issue is a live point.

Under the provisions of section 67 of the Criminal Justice Act 1967, time spent on remand could only count as part of the sentence if the offender was not in custody for any other reason. Section 67 has now been repealed save in respect of offences committed before 4^th April 2005 and section 240 (2) of the 2003 Act provides that:

Section 240 (3) of the 2003 Act provides that, in a case where section 240 applies:

On 23^rd July 2005, the Remand in Custody (Effect of Concurrent and Consecutive Sentences of Imprisonment) Rules 2005 were promulgated and in rule 2, it is provided that:

Thus the answer to this question posed depends on whether the offender was in custody because he was serving an existing sentence when he is sentenced for the second offence. If he is, then his time in custody will not be deducted for the purpose of the second sentence while if he was not in custody because he was serving an existing sentence, then this time will be deducted from his sentence.

On 1 November 2006, at the Crown Court at York the appellant pleaded guilty on re-arraignment to a count of aggravated burglary. At that time he was serving a sentence of 26 months imprisonment which had been imposed on him for dangerous driving and contempt of court on 2 August 2006.

On 1 December 2006, at the Crown Court at York the appellant was sentenced by Judge Hoffman to imprisonment for public protection with the specified period being set at 4 ½ years less 210 days which the appellant had spent on remand. We will have to explain why the judge erred in calculating the days spent by the appellant on remand as he apparently took into account the period when the appellant was serving the earlier sentences imposed on 2 August 2006.

On 4 December 2006, again at the Crown Court at York the appellant admitted being in contempt of court when he was sentenced on 1 December 2006 and he was then sentenced for this contempt to 12 months imprisonment but it is common ground that this sentence did not lead to an increase in the sentence for public protection. So we need not consider it further.

The aggravated burglary occurred on the night of 1 May 2006 when the appellant and his two co-accused burst into a house occupied by a youth called Horwell who was at home with his 16 year old sister and three friends. Each of the appellant’s group was armed with one of them having a knife, another having a screwdriver and a third had a CS gas canister. Although the appellant and his co-accused had attempted to disguise their faces, the appellant was recognised. The appellant and his co-accused threatened all the people in the house. They demanded money and they were described as running amok. Indeed such was the fear engendered that Horwell’s sister whose home was being invaded suffered an asthma attack.

Her brother was taken into the bedroom with one of his friends and the appellant demanded money from him. The appellant and another co-accused ransacked the room and Horwell handed over his wallet containing £40 cash and his bank cards. They also took jewellery from one of the drawers and the appellant threatened to stab Horwell. A knife was put to his friend’s face and the co-accused punched both men. At some point, the appellant jumped on the bed and he sprayed both men from the CS gas canister.

While this was happening, the third co-accused remained in the kitchen threatening the others at knife point and he took some jewellery from them. The house was searched and a further £350 was taken from the main bedroom before the three burglars pointed their knifes at Horwell’s sister and he threatened her before telling her not to tell anyone or she would then be killed. The appellant and his co-accused then left. Some of the stolen jewellery was recovered from the home address of the appellant.

The appellant was born on 17 February 1982 and so he is now 25 years old. He had six previous convictions for threatening behaviour, two for assault occasioning actual bodily harm, one for affray and one for battery.

The Judge in sentencing the appellant pointed out that this was a planned burglary committed by the appellant when he was on bail. His previous convictions raised a statutory assumption of dangerousness. The Judge took the view that there was a significant risk of the appellant causing serious harm to the public in the future by the commission of further offences.

It was contended on behalf of the appellant that a sentence of imprisonment for public protection should not have been imposed. In the light of the appellant’s previous convictions, the sentencing judge had to proceed on an assumption of dangerousness unless it was unreasonable to do so. In our view it was not unreasonable to do so for two compelling reasons. First, the pre-sentence report pointed out that there was a high risk of the appellant re-offending and of causing significant physical, physiological or emotional harm. Second, the appalling nature of this aggravated burglary would by itself well have justified a finding that it was not unreasonable to impose a sentence for imprisonment for public protection. Thus we reject the appeal that the order for public protection should not have been imposed.

We now turn to consider the ground of appeal that the specified period of 4 years and 6 months less time spent on remand was manifestly excessive. The approach of the Judge was to say that he would have passed a sentence of 7 years but he had to take account of the fact that the appellant was already serving a sentence of 26 months.

The judge explained how he reached the specified term of 4 ½ years. Having considered the existing sentence of 26 months, he then explained that he would regard that as a sentence of 2 years to which he added the period of 7 years to which we referred in paragraph 25 above. This then gave a total of 9 years which he then halved so that it gave his final term of 4 ½ years.

The judge also stated that the sentence had to be reduced to take account of the 210 days which the appellant had spent in custody. We will also explain that this is a miscalculation as the appellant was only entitled to credit for 82 days spent in custody because the remaining days were spent in custody in serving the 26 month sentence imposed on him on 2 August 2006 and to which we referred in paragraph 15 above and these days cannot be taken into consideration for the aggravated burglary sentence for the reasons explained in paragraphs 10 to 14 above.

We are very conscious of the difficult task confronting a sentencing Judge because of the complexity of the statutory provisions. As we have explained in paragraph 14 above, the approach which he ought to have adopted was to have taken account of the periods still remaining to be served under the existing determinate term before specifying the period for the purposes of the sentence for public protection. If the judge had followed that course, he would have found that of the 26 months sentence imposed on the appellant on 2 August 2006, he had served 128 days but that figure has to be doubled because he would have been released half way through. That then gives a figure of between 8 and 9 months and we will call it 9 months which then has to be deducted from the 26 month period; that would give a balance of 17 months.

This term would then have had to have been added on the 7 years to give a total sentence of 8 years 5 months which we do not consider offends the principle of totality. In accordance with the ordinary principles that would then have to be divided in half so as to give a specified period of 4 years and 2 ½ months.

The appellant is also entitled to credit for the time he had spent on remand prior to serving his first sentence and that is a period of 82 days. Thus in our view the minimum term which should have been specified was 4 years and 21/2 months less 82 days but this is longer than the sentence imposed by the judge, which was 4 years 6months less 210 days. This court cannot increase the sentence imposed by the sentencing judge (section 11 (3) of Criminal Appeal Act 1968). So the appeal has to be dismissed.