Chaytors, R. v

1. MR JUSTICE ROYCE: Matthew Chaytors is now aged 22. On 30th September 2011, at the Crown Court at Maidstone, he pleaded guilty to three offences of robbery. On 25th November of the same year he was sentenced as follows: on count 1, nine years' imprisonment; count 2, three years concurrent; count 3, three years concurrent; the total, nine years. He appeals against sentence by leave of the single judge.

2. His co-accused, David Pay, pleaded guilty on the same occasion to the three offences and was sentenced to eight years' imprisonment.

3. The facts were these. On the night of 19th/20th July 2011 Peter Hills and his brother, Edward, the subjects of counts 2 and 3, spent the night with their friend Luke Jarrett, the subject of count 1. Sometime after midnight the two brothers left the property and went to a cash point to see whether money had been paid into an account. They were intercepted by the appellant and Pay, who escorted them back to Jarrett's house. The brothers knew the appellant and Pay, but not in the way of any close relationship. Edward Hills had a key to the property. The appellant took him up to the flat and went in. Pay and Peter Hill followed them inside a short while later.

4. Luke Jarrett was awoken by the noise of Edward Hills being assaulted. When he intervened, the appellant and Pay turned on him. All three complainants were punched and kicked.

5. The appellants took possession of a knife that was in the property and used it to threaten Jarrett. Demands were made as to where his money, weed and beer was being kept. The knife caused a small cut to the back of Jarrett's neck, which later required four stitches. Jarrett also suffered a cut to the back of the head, a suspected fracture of the eye socket and bruising and swelling to the face. Edward Hills suffered a cut to the back of the head and bruising and swelling, principally to the left eye, but also to other parts of the face and to the shoulder. There was no evidence about injuries to Peter Hills.

6. An X-box, an iPad, a portable television and a sound system belonging to Jarrett were stolen. It appears other items were taken, but they did not form part of the indictment. Mobile phones were taken from Edward and Peter Hills. No property was recovered.

7. After his arrest, the appellant gave a no comment interview, it would appear on solicitor's advice.

8. Pay initially made no admissions, but in a second interview he did accept that he was present and made what could best be described as curiously contradictory admissions in some respects but full admissions in others.

9. Both Pay and the appellant put forward a basis of plea. The appellant's basis was that he had the knife to fend off any attack whilst proceeds of the robbery were removed from the flat by his co-defendant; injury caused by the knife was an accident as he tripped into Luke Jarrett.

10. Pay's basis of plea was as follows:

"I knew that one of the males had a knife as I saw one of them with it in his hands. However this knife was being passed backwards and forwards between the two males so I wasn't sure which one had it."

11. In the case of this appellant, he had a number of previous offences, 13 convictions for a total of 21 offences in all. They included two offences of assault occasioning actual bodily harm, two offences of battery, two offences of common assault and one of threatening behaviour. Pay's previous convictions were similar.

12. In sentencing, the judge concluded that these were very serious offences of robbery, where significant violence was used on Mr Jarrett in his own home. A knife was used to threaten him, although the injury it caused to him had been caused recklessly and not deliberately. Furthermore, both men had significant criminal records for both violence and dishonesty. This was, on the Sentencing Guideline Council guidelines, a level 3 robbery, where the bracket was seven to 12 years. The judge said it was right at the top of the bracket and after a trial the sentence for both men would have been 12 years. In relation to mitigation, he said this:

"... I bear in mind what is the principal mitigation in both of your cases, which is that you pleaded guilty at the first available opportunity. Particular credit is due to you Pay, because you not only pleaded guilty at the first available opportunity but you also pleaded guilty at the police station."

He then said that the appropriate reduction in the appellant's case was 25 per cent and in Pay's case was one third. Thus it was that there was a one year difference between their sentences.

13. Mr O'Connor, on behalf of the appellant, accepts the judge was entitled to take 12 years as the appropriate starting point after a trial. The point he makes is a short one. He says there was no proper reason for not giving the appellant a one-third discount as he had pleaded guilty at the first reasonable opportunity. As already set out, both the appellant and his co-accused pleaded guilty at the plea and case management hearing on 30th September 2011. Mr O'Connor further points out that although the co-defendant Pay made certain admissions, he had certainly not made full admissions when interviewed.

14. It is common ground that the normal level of reduction for plea is one third if the plea was at the first reasonable opportunity: see paragraph 4.2 of the Sentencing Guideline Council Definitive Guideline for Reduction of Sentence for Guilty Plea. What is the first reasonable opportunity? That is considered in Annex 1 to the guideline as follows:

"1. The critical time for determining the reduction for a guilty plea is the first reasonable. opportunity for the defendant to have indicated a willingness to plead guilty. This opportunity will vary with a wide range of factors and the Court will need to make a judgement on the particular facts of the case before it.

2. The key principle is that the purpose of giving a reduction is to recognise the benefits that come from a guilty plea not only for those directly involved in the case in question but also in enabling Courts more quickly to deal with other outstanding cases.

3. This Annex seeks to help Courts to adopt a consistent approach by giving examples of circumstances where a determination will have to be made:

(a) the first reasonable opportunity may be the first time that a defendant appears before the court and has the opportunity to plead guilty;

(b) but the court may consider that it would be reasonable to have expected an indication of willingness even earlier, perhaps whilst under interview;

Note: For a) and b) to apply, the Court will need to be satisfied that the defendant (and any legal adviser) would have had sufficient information about the allegations.

(c) where an offence triable either way is committed to the Crown Court for trial and the defendant pleads guilty at the first hearing in that Court, the reduction will be less than if there had been an indication of a guilty plea given to the magistrates' court (recommended reduction of one third) but more than if the plea had been entered after a trial date had been set (recommended reduction of one quarter), and is likely to be in the region of 30%;

(d) where an offence is triable only on indictment, it may well be that the first reasonable opportunity would have been during the police station stage; where that is not the case, the first reasonable opportunity is likely to be at the first hearing in the Crown Court ..."

15. In this case the judge raised with prosecuting counsel when the pleas were entered. Prosecuting counsel said in response that the pleas were entered at the first reasonable opportunity. It was open to the judge at that stage to raise the issue. He could, had he so wished, have indicated a view that in the appellant's case it was not at the first reasonable opportunity.

16. In our experience is often the case that judges make it clear that there should be no assumption that a plea at the plea and case management hearing will attract a one-third discount and they apply within the guideline a lesser discount on the basis that the first reasonable opportunity was earlier. That is an entirely proper approach and it should encourage early indications of willingness to plead, with all the consequential savings of cost and time. However, in this case, as already indicated, the prosecution did not put the matter on that basis and the judge in sentencing expressly said in relation to this appellant that he had pleaded guilty at the first reasonable opportunity. He did not raise with counsel any issue about it. Defence counsel was faced with the prospect of going down to the cells afterwards and seeking to explain to this appellant why he had not been given the conventional one-third discount for a plea at the first reasonable opportunity.

17. In these circumstances Mr Wicks realistically accepts that that was indeed the prosecution stance before the judge.

18. We are driven to conclude that there should have been a full one-third reduction in the circumstances accorded to this appellant. Accordingly, we quash the sentence of nine years and substitute for it a sentence of eight years. The appeal is allowed to that extent.

19. We add this. In an increasing number of court centres now there is an early guilty plea scheme where early guilty plea hearings take place. In those centres there are practice guidance notes making it clear that there is a presumption that only a 25 per cent discount will be given if a guilty plea is entered at the plea and case management hearing rather than earlier. The Maidstone Court involved in this case is not, as yet, one of those centres. However, as this scheme develops around the country it will be increasingly difficult to maintain that a plea at the plea and case management hearing is the first reasonable opportunity.