R v Bishop

MR JUSTICE MADDISON: On 25th February 2011 in the Crown Court at Nottingham the appellant, Wayne Steven Bishop, who is 33 years old, pleaded guilty to a count of dangerous driving. On 10th March he pleaded guilty to a count of burglary on rearraignment and on 11th April he was sentenced by His Honour Judge Sampson to serve 4 months' imprisonment for the burglary and 4 months consecutively for the dangerous driving. He was also disqualified for a period of 3 years and until thereafter he had passed an extended driving test. He appeals against sentence by leave of the single judge.

There were three co-accused, all of whom also pleaded guilty to the burglary. Robert Frederick Wheelhouse, 39 years of age, received 4 months' imprisonment. Paul Andrew Sears, 30 years of age, received a suspended sentence order, comprising 5 months' imprisonment suspended for 12 months with a requirement of unpaid work. Daniel Jason Staples, 24, also received a suspended sentence order, in his case comprising 4 months' imprisonment, suspended for 12 months, with a requirement of unpaid work.

The facts can be shortly stated. In the early hours of the morning of 2nd September 2010 the appellant drove a Transit van with his three co-accused in it from Nottingham to the clubhouse of Mansfield Rugby Club. The three co-accused alighted from the van and broke into the club through a rear door. The premises were searched but all that was ultimately stolen was a quantity of chocolate.

The alarm at the club was activated and police officers attended at the scene. They found Staples hiding in undergrowth nearby, in possession of two balaclavas and a burglar's kit which included bolt croppers and a crowbar. He also had on him a two-way radio. Wheelhouse was also found nearby. Other police officers came across the Transit van nearby and approached it. The appellant was in the driving seat and Sears was a passenger. The appellant manoeuvred the van forwards and backwards several times, narrowly missing a police officer and coming into contact with a police vehicle before making his escape. The van drove off, reaching but not exceeding speeds of 50 miles per hour and police officers were in pursuit. During the pursuit the appellant passed through two sets of red traffic lights. He eventually drove into, doubtless unwittingly, a dead end and was arrested. The chase had extended over a distance of some two-and-a-half miles.

This was by no means the first occasion on which the appellant had appeared before the criminal courts. He had made 14 previous court appearances and had served three previous short prison sentences. He had not previously been convicted either of burglary or of dangerous driving, but he had been convicted of one offence of theft, no less than six of driving whilst disqualified and he had been before the court for breaches of community orders on three previous occasions.

The judge had a pre-sentence report recommending a community order with various conditions. The report expressed the view that there was a medium risk of the appellant's re-offending. His child care commitments made him unsuitable for unpaid work. The report recorded that he lived with his five children but that his ex-partner cared for the children two nights a week and at weekends. The report also said that according to the appellant, his ex-partner would care for the children should he be given a custodial sentence though the appellant was worried about the further disruption that this could bring to the children's lives.

Passing sentence, the judge described this as a planned expedition to carry out a commercial burglary. Suitable premises had been targeted and tools had been taken with them. They had driven some distance in the appellant's van and in those circumstances custodial sentences were inevitable. The judge's starting point in respect of the burglary was that in the event of the trial, a sentence of 6 months' imprisonment would have been appropriate.

The appellant's situation was aggravated by the way in which he had driven in an attempt to get away after he had been discovered. The judge observed, as have we, that the appellant had failed previously to comply with community penalties in the past. He then imposed the consecutive sentences to which we have referred.

The principal ground of appeal before us is that the judge should have had more regard for the plight of the five children who were aged between five and 13 years. Contrary to what was said in the pre-sentence report the appellant, we are told, was in fact looking after the children throughout the week and his ex-partner only at weekends. Decisions of the Court of Appeal, in particular in the case of R v Mills [2002] 2 Cr App R(S) 52, and the case of R (On the application of P) v Secretary of State for the Home Department [2001] 1 WLR 2002 have indicated that a sentencing judge should, consistently with Article 8 of the European Convention on Human Rights, have at the forefront of his or her mind the consequences for children if their sole carer is sent to prison and consider whether on balance the seriousness of the offence or offences justifies the separation of child and carer. If the court has insufficient information to enable it to carry out this balancing exercise, then it must ask for more information. The judge in the present case, it is said, failed to observe these principles. The four month sentences, unobjectionable as to their lengths, should have been suspended.

We first consider whether the judge should have sought further information about the children. We have concluded that he should. True it is that their situation was referred to in the pre-sentence report. Moreover Mr Posner, the solicitor advocate appearing for the appellant before the sentencing judge, informed the judge about the error in the pre-sentence report regarding the care of the children. Moreover, the judge was made aware that the appellant's ex-partner worked full-time on shifts and would therefore have difficulty in looking after the children.

However, so far as we can ascertain, the judge was never informed about the proposed arrangements for the children, should the appellant lose his liberty and never enquired about such matters. In fact what has happened, as appears from two recent statements from Sherrie McKinley, the appellant's sister, is that she and the appellant's ex-partner have shared responsibility for the care of the children, the appellant's sister taking on the major part of the burden. The sister already has responsibility for looking after seven children: five of her own; one adopted and one fostered. She is a single parent. One of the seven is in a wheelchair following an accident. The sister lives 7 miles from the schools of the appellant's children. Two of the appellant's children have developed behavioural problems whilst the appellant has been in custody: running away from the ex-partner's house when they have been supposed to be staying there. On top of this the sister has had to pay rent on the appellant's behalf to stop the council repossessing his house. It is apparent that the position of the children is a highly unsatisfactory one in the absence of the appellant himself.

We have come to the conclusion that the imposition of a sentence of imprisonment was entirely appropriate and as appears to be conceded the overall length of the sentence of 8 months cannot be criticised given the nature of the offences and the nature of the appellant's criminal record. There is little, if any, personal merit to be found in relation to the appellant and it is important that criminals should not think that children can provide some sort of licence to commit criminal offences with impunity.

All of that said, however, we have to be aware of the highly unsatisfactory and difficult situation faced by the children and those now doing their best to look after them. We have come to the conclusion, consistently with the authorities to which we have referred, that the appropriate course is to allow the appeal and to suspend, for a period of 2 years the consecutive sentences which were pronounced by the judge. We also think that there should be, as part and parcel of the suspended sentence orders the three requirements recommended towards the end of the pre-sentence report. There will be a supervision requirement for a period of 12 months, a requirement that the appellant complete a Thinking Skills Programme as directed by the probation officer responsible for his case and there will also be a curfew requirement to run for a period of 3 months between the hours of 10.00 pm and 6.00 am each following morning.

There is one further matter to which we think we should draw attention, conscious as of course we are of the fact that the appellant has been in custody for some time serving the immediate sentences to which we have referred. We have considered whether or not the term suspended today should be reduced to take into account the period which the appellant has already served in custody. Subject to any further argument, (and if Mr Wise QC, who appears today on behalf of the appellant wishes to address further argument to us, either now or later this morning, we will readily hear it,) but subject to any further argument, our view is that, reading together section 240 and in particular subsections (1), (3) and (7) and section 242 and in particular section 242(2)(a) the appropriate course is not to reduce the 8 months today, because if at some future time there should be any breach of the suspended sentence such that a court activates it, is upon the activation of the sentence that the court will take into account the period which the appellant has already spent in custody serving his sentence.

Accordingly we allow the appeal to the extent that we have indicated and as we have said, we will readily hear from counsel further should it be thought that our conclusion in relation to sections 240 and 242 has erred in any way.

MR WISE: I am much obliged my Lord. If you bear with me one moment. First thing I am asked to draw to your Lordship's attention does the court need my client's address for the purpose of the curfew order?

MR JUSTICE MADDISON: Yes.

MR WISE: With respect to section 240 points plainly we need to give a little consideration to and will do so outside of court. I wonder whether the most convenient route was to assume that unless an application is made to come back to court we are content with the formulation and do not wish to make any further submissions.

MR JUSTICE MADDISON: All right.

MR WISE: A convenient way of dealing with it.

MR JUSTICE MADDISON: For the avoidance of any doubt the outcome is that the two sentences consecutive to each other are suspended. All right, thank you for your help.