Cairns v R

Far too many appeals against sentence are mounted on the basis that the Judge has failed to have any, or sufficient, regard to the basis on which a plea of guilty has been entered. Although it has not been submitted that the principles are in doubt, these cases (each of which is said to raise some aspect of the problem) have been collected together in order to re-state the approach to be adopted. To that end, the Crown Prosecution Service has instructed Mr Paul Lewis Q.C. (who was counsel for the Crown in the case of Rafiq and Drummond) to provide over-arching or general submissions: we are grateful for his assistance.

It is a cardinal principle of our criminal justice system that, for those cases decided in the Crown Court, a jury decides on the guilt or otherwise of those charged with crime. That critical decision concerns only whether the ingredients of the criminal offence or offences (as set out in the indictment) are proved. The jury is not concerned with what might be described as the aggravating or mitigating circumstances which will be important in the event of a conviction, namely the decision that falls to the judge as to the sentence to be imposed. Only in very rare circumstances should the jury be asked questions supplementary to the verdict (one example being whether manslaughter has been proved as an involuntary act, by reason of diminished responsibility or because of loss of control).

After a trial, therefore, once the offence has been proved, in order to do justice, the judge has to determine the gravity of the offending and is both entitled and required to reach his or her own assessment of the facts, deciding what evidence to accept and what to reject. The conclusions must be clear and unambiguous not least so that both the offender and the wider public will know the facts which have formed the basis for the sentencing exercise. They also inform this court should the offender seek to appeal the sentence as wrong in principle or manifestly excessive, or the Attorney General seek to refer it as unduly lenient.

The position is no different when an offender pleads guilty. The admission comprised within the guilty plea is to the offence and not necessarily to all the facts or inferences for which the prosecution contend. Once again, however, the responsibility for determining the facts which inform the assessment of the sentence is that of the judge. In the normal course, when the contrary is not suggested, that assessment will be based on the prosecution facts as disclosed by the statements. If, however, the offender seeks to challenge that account, the onus is on him to do so and to identify the areas of dispute in writing, first with the prosecution and then with the court.

The proper approach of the prosecution to bases of plea was considered in R v Tolera [1999] 1 Cr App R 29 and is now set out in the Attorney General’s Guidelines on the Acceptance of Pleas and the Prosecutor’s Role in the Sentencing Exercise (issued with effect from 1 December 2009). In so far as it deals with the position of the defendant and the court, it can be summarised in this way:

A basis of plea must not be agreed on a misleading or untrue set of facts and must take proper account of the victim’s interests; in cases involving multiple defendants, the bases of plea for each defendant must be factually consistent with each other (see para C1).

The written basis of plea must be scrutinised by the prosecution with great care. If a defendant seeks to mitigate on the basis of assertions of fact outside the prosecutor’s knowledge (for example as to his state of mind), the judge should be invited not to accept this version unless given on oath and tested in cross examination as set out in IV.45.14 of the Consolidated Criminal Practice Directions (CCPD): see para. C3. If evidence is not given in this way, then the judge might draw such inferences as he thought fit from that fact.

The prosecution advocate must ensure that the defence advocate is aware of the basis on which the plea is accepted and the way in which the case will be opened (para. C5). Where a basis of plea is agreed, having been reduced into writing and signed by advocates for both sides, it should be submitted to the judge prior to the opening. It should not contain matters that are in dispute: see R v Underwood [2005] 1 Cr App R 13 replicated in CCPD IV.45.11(c) and (d). If it is not agreed, the basis of plea should be set out in writing identifying what is in issue; if the court decides that the dispute is material to sentence, it may direct further representations or evidence in accordance with the principles set out in R v Newton (1982) 77 Cr App R 13.

Both sides must ensure that the judge is aware of any discrepancy between the basis of plea and the prosecution case that could potentially have a significant effect on sentence so that consideration can be given to holding a Newton hearing. Even where the basis of plea is agreed between the prosecution and the defence, the judge is not bound by such agreement: see paras. C8 and C10, CPR IV.45.12 and Underwood (ibid). But if the judge is minded not to accept the basis of plea in a case where that may affect sentence, he should say so.

Without seeking to be exhaustive of the issues that might arise (or citing all the relevant authorities), there is no obligation to hold a Newton hearing (a) if the difference between the two versions of fact is immaterial to sentence (in which event the defendant’s version must be adopted: R v Hall (1984) 6 Cr App R (S) 321; (b) where the defence version can be described as ‘manifestly false’ or ‘wholly implausible’: R v Hawkins (1985) Cr App R (S) 351; or (c) where the matters put forward by the defendant do not contradict the prosecution case but constitute extraneous mitigation where the court is not bound to accept the truth of the matters put forward whether or not they are challenged by the prosecution: R v Broderick (1994) 15 Cr App R (S) 476.

A Newton hearing need not be a lengthy affair. By way of example, in the case of Cairns discussed below, if the judge was concerned that the defendant was, in truth, the equivalent of a street dealer (given the quantity of drugs, the money in his possession and the phone details), it would have taken a few minutes only for the defendant to be provided with the opportunity and, if he took it, to give evidence seeking to establish his contention that his supply of class A drugs to others was on a social basis to friends and associates only. The judge would then have been in a position to decide the issue to the usual standards. Given the risk that credit for a guilty plea will be reduced if there is an adverse Newton finding (see R v Caley & other cases [2012] EWCA Crim 2821 at paras. 26 and 27), advancing a spurious basis of plea will require careful consideration. At the conclusion of any such hearing, in order to meet the requirements of the defendant and the wider public, the judge should provide a reasoned decision as to his findings of fact and thereafter, following mitigation, proceed to sentence.

After conviction following a trial, the judge is bound to honour the verdicts of the jury but, provided he does so, is entitled to form his own view of the facts in the light of the evidence. This is so even if the jury express an opinion on a matter going only to sentence: see R v Mills [2004] 1 Cr App R (S) 332. In R v McGlade (1990) 12 Cr App R (S) 105, Lord Taylor CJ put the general proposition in this way (at 109):

That is not to say that a Newton hearing is never appropriate after a trial. If an issue not relevant to guilt but relevant to sentence has not been canvassed in the trial, a further hearing may be necessary. In R v Finch (1993) 14 Cr App R (S) 226, the defendant alleged that he had been enticed into carrying drugs by a police officer and the judge made it clear that, even if it were the case, it would not constitute a defence. In fact, neither that officer nor the defendant gave evidence so, as the court observed, there was no evidence “one way or the other” although “if there had been, then of course there would have been no need for a Newton style enquiry” (per Lloyd LJ at 228).

Following well established principles, this court will not interfere with a finding of fact made either following a trial (R v Wood (1992) 13 Cr App R (S) 207) or a Newton hearing (R v Ahmed (1984) 6 Cr App R (S) 391) provided that the judge has properly directed himself or, exceptionally, where the court is satisfied that no reasonable finder of fact could have reached that conclusion. It follows, therefore, that it is important for all involved in the exercise to ensure that it is conducted correctly and in accordance with principle. Against that background, we turn to the specific appeals.

On 28 November 2012, at the Crown Court at Maidstone, having previously pleaded guilty to possession of a drug of Class A (MDMA) with intent to supply, James Cairns was sentenced by His Honour Judge Joy to 3 years imprisonment. His application for leave to appeal sentence has been referred by the Registrar, it being contended that the judge sentenced on the basis that the applicant was street dealing and fell within Category 3 of the Guidelines issued by the Sentencing Council in force in relation to all offenders sentenced after 27 February 2012: this is said to be contrary to the accepted basis of plea that he was a personal user of Class A and B drugs and had supplied MDMA to friends and associates on a social basis in order to support his own drug habit and not for financial gain. The basis of plea was signed by the applicant but not by either counsel.

The facts are very straightforward. At about 4.20 am on 24 October 2011, police officers attended the applicant’s home in Basildon where he lived with his parents. As the officers mounted the stairs, they heard a widow open and close. On entering the applicant’s bedroom, they could smell cannabis; a search revealed £306.68 in cash, plastic ‘deal’ bags and an ecstasy tablet. From the garden path underneath his bedroom, they found a bag with five paper wraps containing brown powder and in guttering a further six wraps were recovered. Messages on his mobile phone showed evidence of drug dealing activity. The 11 wraps were later found to contain just over 4 grams of MDMA in various quantities: the value of the MDMA and the ecstasy tablet was £200-£260. The applicant made no comment when interviewed.

The applicant is 22 years of age and has nine previous convictions for 24 offences none of which involve drugs (although he had once been cautioned for possession of MDMA with intent to supply); he had twice been sentenced to terms of imprisonment for 12 weeks (for damaging property) and 6 months (for harassment and breach of a non-molestation order). A pre-sentence report revealed that his offending history had become a matter of concern. He had misused alcohol from the age of 13 and his level of aggression had led to offending; drugs were an issue and drug misuse had escalated to supply. It was reported that there was a high risk of re-conviction with a medium risk of harm to the public.

A letter from his adoptive parents recognised that the applicant had to take personal responsibility for his actions, describing how he had spent some time at a mental health unit, having been diagnosed with a borderline personality disorder. They spoke of his recent understanding of what had contributed to his poor decision making and said that he had demonstrated remorse; they genuinely believed that he had turned a corner and wished to help him to rebuild his life with them.

It was perfectly plausible for the prosecution (or, indeed, the judge) to reject the basis of plea that he had supplied MDMA to friends and associates on a social basis in order to support his own drug habit and not for financial gain. He was not in employment (and had no history of long term employment) and a combination of the eleven wraps, the money and the mobile phone messages could have led to the inference that he was supplying drugs on a commercial basis: whether in the street or otherwise, he was, in reality, street dealing for gain.

In the event, when opening the sentence hearing, Crown counsel indicated that he understood that “the basis of plea has been accepted by the Crown in that the Crown has indicated that they do not seek a Newton hearing”. He went on “it is accepted, in the basis of plea, that this is not a commercial supply, in the usual sense of the word, but rather to support a habit”. This assertion is not clear: most street dealers, commercially involved in the small scale supply of drugs to others, are also supporting their own habit. The critical question was whether he was a ‘street dealer’ supplying to whomsoever wanted to purchase drugs or whether he was ‘supplying to friends and associates on a social basis’.

The judge specifically asserted that he was sentencing him according to his basis of plea but went on to say that although the weight placed him in category 4 of the Guideline, when it involved selling directly to users ‘street dealing’, the starting point was not based on quantity and moved to category 3. His role was significant (motivated by financial or other advantage). On that basis, the starting point was 4½ years imprisonment; having pleaded guilty at the first available opportunity (thus entitled to a full discount of one third), the sentence of 3 years imprisonment followed.

By definition, supply of drugs must always be to others and the Guideline seeks to draw a distinction between supplying to friends albeit to make enough to fund a habit but not with financial advantage as a motive on the one hand and street dealing, which is effectively selling to all comers, on the other. The judge was entitled to infer that the combination of the drugs he had available, the amount of money in his possession (which undermined the claim to absence of financial gain) and the information on his mobile phone meant that he was, in reality, a street dealer but only if he had given the defendant a chance to deal with the possibility of that finding. This need not have been complicated: it would simply have required the judge to invite the defence to call the defendant to explain how the combination of these facts fitted with the basis of his plea. The applicant would then have to have decided whether to risk losing some credit for his guilty plea (if disbelieved on his oath) or seeking to persuade the judge that his involvement was as limited as his basis of plea suggested. Alternatively, if he took the view that the basis of plea was absurd and untenable, he should have explained why he had reached that conclusion.

What the judge could not do, without dealing with the basis of plea, was to treat him as a street dealer in the accepted sense of that term, rather than a man who only supplied to friends and associates on a social basis in order to support his own drug habit and not for financial gain. Sentencing him on this latter basis still placed him in the significant category (‘motivated by financial or other advantage’ rather than ‘absence of any financial gain, for example, joint purchase for no profit, or sharing minimal quantity between peers on non commercial basis’). It did not, however, lift him into the street dealing category.

In those circumstances, the starting point should have been 3½ years which, when discounted for the guilty plea, leads to a sentence of 28 months. Although on the facts presented the applicant may consider himself fortunate, being faithful to the principles we have outlined, this sentence is manifestly excessive. Leave to appeal is granted; the appeal is allowed to the limited extent of reducing the term to one of 28 months imprisonment imprisonment.

On 19 October 2012, in the Crown Court at Merthyr Tydfil, Nigel Leonard Morris appeared before His Honour Judge Daniel Williams, having previously pleaded guilty to offences of meeting a child following sexual grooming contrary to s. 15(1) of the Sexual Offences Act 2003 and sexual activity with a child, contrary to s. 9(1) of the same Act. He was sentenced to 27 months imprisonment and 6 months imprisonment respectively, the sentences to run concurrently. He was also made the subject of a sexual offences prevention order. His application for leave to appeal against sentence has been referred by the Registrar.

The applicant and X (who was 13 years of age) lived on the same estate. At about Christmas 2011, X started a paper round on the estate and shortly thereafter received a request on Facebook from the applicant to become a friend. Realising that he was the father of someone with whom she used to be friendly, she accepted whereupon she began to receive text messages, initially innocuous and friendly but, within a month, sexual in nature. One stated that ‘making love in the shower is nice’ and, in another, the applicant stated that he wanted to have sex with her when she was old enough. He also asked for phone sex and invited her to masturbate while on the phone. Initially, X treated the messages as a joke.

The applicant also left money and sweets for X to collect on her paper round, the money ranging from £5 - £20 although on her 14^th birthday, he left her £40 with a note “I love you”. He also asked why she had deleted him from her Facebook account. He asked to meet her; she agreed (treating the matter as a joke) and then made an excuse for not attending. On one occasion, however, they did meet in a local park when the applicant was waiting for her. He took her by the hand, again asked why she had deleted him from Facebook, then kissed her on the lips. He attempted to kiss her with an open mouth but X shied away. He said “Is that the best you can do?” X walked away but the applicant repeated the question in a text.

On 26 April 2012, the applicant requested another meeting; she agreed to go but on the way became upset and told her friend what had happened in the park. Her friend told her mother and the police were informed. Over the period the applicant had sent some 600 texts to X and received 450 replies. On his arrest, he commented that he had been chatting with X but nothing sexual: when interviewed, he declined to answer questions.

The applicant subsequently pleaded guilty (albeit not at the first opportunity). He did not then qualify his plea or challenge the facts but, when he appeared for sentence, a written basis of plea in relation to the grooming offence was produced; it was not signed by or specifically accepted by the Crown but was expressed in terms:

At the time of these offences, the applicant was 47 years of age and of prior good character; he was in full time employment and lived with his wife and daughter. References spoke very highly of him and his kind-hearted, trustworthy character; one did not believe he had been accused because “he’s a lovely person”. A pre-sentence report identified that the applicant had claimed that X had suggested having sex with him but that he had declined. He was somewhat evasive when discussing the offences but admitted that his behaviour had been inappropriate (denying that he had kissed X): he showed little remorse and attempted to justify his behaviour by claiming that X had initiated the contact.

When passing sentence totalling 27 months, the judge concluded that the applicant represented a danger to young girls, having sought X out when she was doing a paper round. He went on:

The judge concluded that, “bearing in mind the guidelines”, the starting point was 3 years imprisonment which he reduced by 25% for the guilty plea and the main plank of this appeal is that, notwithstanding what he said, the judge effectively sentenced not on the basis of plea but rather that the applicant intended to have penetrative sexual intercourse prior to X’s 16^th birthday. Although those are not the words he used when passing sentence, that submission is based on a consideration of the guideline issued by the Sentencing Guidelines Council in April 2007.

That guideline deals with the offence of sexual grooming by distinguishing between the sexual offending which it was intended to commit at the meeting with the under age child. If the intent is to commit an assault by penetration or rape, for a victim over the age of 13 but under 16, for a man of good character the starting point is 2 years imprisonment with a range of between 1 and 4 years; if the intent is to coerce the child into sexual activity, for a victim over the age of 13 but under 16, the starting point is 18 months imprisonment with a range of 12 months to 2½ years. Thus, by taking a starting point of 3 years, it is said that the judge ignored the basis of plea, failed to reflect the absence of aggravating features (including the fact that the case involved a single kiss) and did not give any or sufficient credit for the applicant’s prior good character and plea.

In fact, the judge was careful not to identify the age at which the applicant intended sexual intercourse with X but (as these guidelines make clear), the main factors determining the seriousness of a preparatory offence include (among others) the degree to which the offence was planned; the sophistication of the grooming; and the determination of the offender. In this case, starting when X was still 13, the applicant had embarked on a plan to groom X so effectively that over two years thereafter she would be prepared to consent to sexual intercourse with a man over 35 years older than she was. He groomed her with messages, texts and presents and was clearly very determined. In those circumstances it is not surprising that the judge was not as influenced by the fact that when the two met, the sexual activity which took place progressed no further than it did.

In the circumstances, this is not a case in which the judge failed to recognise the basis of plea; neither is it one in which he failed to give sufficient weight to the applicant’s character (these guidelines proceeding on the premise of good character) or his plea (which was not at the first opportunity and thus did not merit one third discount). The only legitimate complaint is that the judge took a starting point that was somewhat too high: given the starting point when the intention of the meeting that followed the grooming did not involve penetrative sexual activity, it was difficult to justify a starting point that did.

In our judgment, the proper starting point should not have exceeded the top of the range to which we have referred. Making the same allowance for the guilty plea, we have come to the conclusion that the proper sentence was 21 months imprisonment. Given the same planning and grooming, the concurrent term for the sexual activity that did occur was entirely appropriate.

Complaint is also made about the Sexual Offences Prevention Order which remains in force until the court amends or discharges it and is in these terms:

In Smith [2011] EWCA Crim 1772, the question is posed whether such an order is necessary to protect the public from serious sexual harm, whether it is nevertheless oppressive and whether it is proportionate. Mr Greenwood argues that this offending was directed to a specific individual and thus it is not necessary to seek to protect other young people. Although we recognise that the order should be restricted to girls (there being nothing to suggest that boys would be the subject of predatory attention), we reject the submission that what was planned for X could not be planned for some other young girl who took the applicant’s fancy. Neither do we accept the submission that the order should cease in relation to X when she attains the age of 16: she has been the subject of the applicant’s grooming and is entitled to protection beyond that age. For how long the order needs to extend can be the subject of review in the Crown Court in due course.

In our judgment, the only ways in which the order goes further than necessary are in relation to males and also in relation to the prevention of contact with any person (i.e. of any age) with intent to arrange a meeting with any person under 16 (whether supervised or not). That would prevent the applicant speaking to close relatives to attend a family event at which children under 16 would be present.

In the circumstances, leave to appeal is granted and this appeal is allowed. We quash the sentence of 27 months and substitute a sentence of 21 months imprisonment; we amend the Sexual Offences Prevention Order so that it provides as follows:

On 13 July 2012 in the Crown Court at Cardiff before His Honour Judge Curran, Shahid Rafiq and Karl Drummond the appellants pleaded guilty to the involuntary manslaughter of Saghir Singh (known as Tony). They each placed a basis of plea before the judge which he rejected; they were both sentenced to 10 years imprisonment from which they now appeal by leave of the single judge.

Before outlining the circumstances of this killing, the procedural history provides important context to the sentencing exercise. Both men (along with a third man, George Glover) were initially charged with murder and conspiracy to rob the deceased. The first trial was aborted when friends of the deceased attempted to interfere with the jury. The second trial concluded in March 2012 with the jury finding the appellants and Glover not guilty of conspiracy to rob, and Glover not guilty of murder. The jury were unable to reach a verdict in respect of the murder charge in relation to the appellants. The prosecution then indicated the intention of proceeding to a further retrial but later indicated that guilty pleas to manslaughter would be accepted. It was in those circumstances that the matter came before Judge Curran (who had been the trial judge) for plea and sentence.

Turning now to the facts, Saghir Singh died on 11 November 2010 in Newport, South Wales. He was aged 24. He was struck on the head with a metal bar similar to a scaffolding pole at a location close to his home at Bryngwyn Road. His mobile phone was stolen from him and was later used to make calls. Following the assault he managed to return to his home where, due to the severity of the injury that he had sustained, he died. The precise moment of his death is not known because his body lay undiscovered in his flat until the night of 15 November 2010. A post mortem examination gave a cause of death as ‘blunt head injury’, including a fractured skull and extradural haematoma. One week later, Rafiq, Drummond and Glover were arrested.

The prosecution case at the trials was straightforward. The appellants together with Glover (all of whom were drug users) entered into an agreement to travel from Caerphilly to Newport and there to obtain drugs by meeting Saghir Singh, a drug dealer, using force to rob him of his drugs and possessions. To achieve that objective, they took the metal bar with them from Caerphilly, intending that it be used as a weapon appreciating that Singh would be seriously injured or killed in the course of the attack. They were driven to Newport by Glover in his van and, after having attacked Singh with the metal bar, searched and robbed him of his possessions (including cash and a mobile phone) while he remained senseless on the ground. Glover (who claimed to have waited in the van) then drove them away from the scene.

It is critical to an understanding of what later transpired to identify that the Crown put its case on the basis that the plan to rob was made in Caerphilly and that the metal bar had been taken from Caerphilly. It was the defence case (supported by evidence) that the bar had been picked up very close to the scene of the incident. The result was, as confirmed by all counsel in the case, that the jury were directed that if they were not sure that the bar had been taken from Caerphilly, they should acquit of conspiracy to rob. This was notwithstanding that, as a matter of law, joint enterprise robbery might have been embarked upon seconds before the attack without the premeditation on which the Crown relied. When the jury acquitted of conspiracy to rob, however, any suggested motive of robbery (however removed from the way in which the Crown had advanced its case) dropped away.

When accepting the pleas to manslaughter, the Crown acknowledged the implications for the prosecution case of the verdicts which had been delivered. As to the approach that the court should take in relation to sentence, Mr Lewis Q.C. recognised the dispute between the appellants and put the matter in this way:

The antecedents of the appellants can be summarised shortly. Rafiq is 38 years of age and has appeared before the courts on 23 occasions for 62 offences although the three offences of violence were committed some 20 years ago and resulted in non custodial sentences. More recently, in 2008, he was sentenced to 4 years’ imprisonment for two counts of supplying heroin. As for Drummond (37 years of age), he had 29 previous appearances for 87 offences: these included 13 offences prior to March 2005 of violence, affray, or possession of an offensive weapon, and he had been sentenced to a range of custodial and non custodial penalties in addition to a conviction in October 2000 for robbery for which he received 54 months imprisonment.

We turn now to analyse the basis upon which each of the appellants pleaded guilty to manslaughter. Shahid Rafiq admitted that he was involved in arrangements to meet Tony Singh on 11 November 2012: before the meeting there had been no plan with Drummond to commit a robbery. The arrangement between the appellants and Glover had involved contacting a drug supplier known as ‘Sicky’ (Ryan Crooks) and arranging to meet one of his runners who turned out to be Tony Singh. Rafiq went with Drummond but stayed back when Drummond met with Singh. Rafiq’s expectation was that during the meeting between Drummond and Singh, Singh would be cheated into handing over drugs in exchange for the promise of money which would not be paid to him.

His basis of plea goes on:

The description of the basis upon which the plea has been entered goes on to assert that Rafiq did not know that Drummond had a metal bar until he saw him hitting Singh with it, at which time Rafiq was some yards away. He did not foresee the use of a weapon by Drummond. Rafiq did not use any violence against Singh. He was involved in handling a mobile phone stolen from Singh in order to obtain money and/or drugs. When Rafiq left the scene of violence Singh was conscious and he did not believe that Singh had suffered serious injury.

Drummond’s basis of plea was very different. He went to a location to purchase heroin from a dealer who had been contacted by Rafiq. When he arrived, he was informed by Rafiq that the last time he was in Newport to purchase drugs he had been robbed by persons with weapons and he noticed that Rafiq kept ‘hanging back’ which made him apprehensive.

He saw and picked up a metal bar from amongst some rubbish on the corner; he did so in order to protect himself should the need arise. In the event, it did because Singh struck out at him and punched him on the bridge of the nose as a result of which he instinctively, and in self defence, struck one blow with the metal bar and thereby struck Singh on the head. At the time of striking the blow he had no intention seriously to harm Singh but he accepted that the blow exceeded lawful self-defence and may have contributed to Singh’s death. Thereafter, he helped Rafiq search Singh’s pockets.

The trials had involved cut throat defences of the clearest sort and the judge concluded that the bases of plea were also conflicting as to the role and responsibility of each appellant in Mr Singh’s death. Judge Curran did not accept either and stated that, having heard three months of evidence, he was able to form his own conclusions as to the proper basis upon which he should proceed to sentence, throughout applying the criminal burden and standard of proof. He was not prepared to hold a Newton hearing: in the light of the fact that the Crown and the defence had mounted their cases in full, there was no need for him to do so and nobody has suggested otherwise.

The judge then set out his conclusions of fact which deal with the surrounding circumstances and which we rehearse in some detail. At the time of the offence the appellants were heroin users. Drummond had been arrested the day before for stealing from shops to fund his habit. He had been held in custody overnight and was not present at a meeting in which his partner, Nina Sayer, a man named Timothy Burrows and Rafiq, with Glover being present, pooled their money to buy heroin from a member of the Ross family in Newport.

Rafiq with Glover and Burrows then went in to Newport where they met with a member of the Ross family and bought what they thought was heroin with the pooled money. By the time they returned, Drummond had been released from custody. It was then that they discovered that what they had purchased was not in fact heroin but was something akin to gravy powder. Rafiq thought that Drummond could persuade the Ross’ either to return the money or to hand over heroin and the appellants along with Glover drove back to Newport in the van.

Drummond went instead of Burrows because he was considered to be the biggest and strongest of the group and had a reputation for being violent; it was thought his presence would assist in persuading the Ross’ to cooperate. In the event their attempts at persuasion failed and the Ross’ telephoned the police making a false complaint that they were being threatened with a firearm. The police Armed Response Group was alerted and they stopped the appellants from leaving the scene; when no firearm and no other weapon was discovered, however, they were allowed to go on their way.

The appellants then decided to meet the victim, Tony Singh, who was a runner for a dealer in Newport, on the pretext of making a drug purchase from him. In reality their intention had been to take his money (and his drugs if he had them) so that they could purchase heroin elsewhere.

Again, because Drummond was much bigger and stronger man than Singh, it was thought that his presence alone would be enough to elicit cooperation. The meeting was arranged by Rafiq, and both he and Drummond alighted from the van. Glover waited in the van. Drummond armed himself with a metal pole which had been discarded outside a disused garage and the two of them went to meet Singh. Rafiq was aware that Drummond had armed himself with a pole and he was also aware both what Drummond was capable of, and also that he would use the pole which he had hidden up the sleeve of his jacket.

When Singh appeared, Drummond produced the weapon and hit him on the head with it a minimum of three times with sufficient force to cause complex skull fractures and an extradural haemorrhage which caused internal bleeding, which in turn caused increasing pressure on the brain. The expert medical evidence was that if such an injury was untreated it would first lead to a loss of consciousness and then death.

In fact, Singh was not knocked out at the scene but while he was on the ground, the pair of them went through his pockets. They took his Blackberry phone and £15. They then returned to the flat in Caerphilly. As they were still without heroin and sufficient money to buy any drugs, Rafiq pretended to be Singh, and using his phone they set up a meeting with one of the customers who rang the phone. They planned to double cross this person in the manner in which they had been earlier double crossed by the Ross family. They made a dummy block of what they would purport to be crack cocaine and then met the customer at Cardiff Gate where they took the money from him and handed over the dummy drug wrap. With this money they eventually purchased some heroin.

Meanwhile, Singh made it back to his flat where he collapsed and died and where his body remained undiscovered for some time.

Judge Curran concluded that both appellants had been strangers to the truth throughout the trial and expressed himself satisfied that, having heard their evidence and seen their demeanour at the trial, the basis upon which he was sentencing them properly reflected both the evidence and the jury’s verdict. He also accepted that there was no intention to kill or cause really serious injury. This had been a joint enterprise and there was no reason to draw any distinction between them: both had a history of violent offending and the fact that this was an attack by two onto one in a public street during the hours of darkness represented aggravating features of the offence.

The judge recognised that Tony Singh had been no stranger to the criminal justice system but made it clear that this did not justify what they had done to him. He observed that manslaughter was a crime that embraces a wide range of criminality and except in cases of provocation (which was not the case here) there are no guidelines as yet issued by the Sentencing Council. In the particular circumstances of this case, the Judge considered the guidelines for street robberies as being of direct relevance as this was akin to a robbery at the top of the range of Level 3 as it involved the theft of a man’s property in the street after he had been knocked to the ground and involved the use of a weapon, a considerable degree of force and ultimately fatal injuries.

Using the analogy of a Level 3 robbery, the Judge put the circumstances at the top end of the range (i.e. 12 years) from which a discount was appropriate by way of credit for the guilty pleas. In the circumstances, having concluded that a discretionary life sentence was not justified, he passed the sentences of 10 years’ imprisonment on both men.

Both appellants appeal on the grounds that the judge failed to honour the verdict of the jury which had acquitted them of conspiracy to rob. It is contended by Mr Ian Murphy Q.C., on behalf of Rafiq, that his basis of plea had been ignored and an unsupportable finding of fact made that he knew that Drummond had a pole and was going to use it: that finding depended on the evidence of conspiracy to rob. As for his antecedents, it was argued that his prior convictions for violence were not significant, the most recent (for common assault) being in 2005: given the finding that Drummond had struck three blows with the pole, the same sentence should not have been imposed on both men.

On behalf of Drummond, Mr John Charles Rees Q.C. argued that sentence was passed on the basis that he armed himself with the metal bar shortly before he met Singh with the intention of robbing him; that Rafiq knew that he had armed himself for that purpose and that when he met Singh he struck him over the head with the bar 3 times (even though there was no evidence to that effect) for the purpose of robbing him and that Rafiq was a party to a joint enterprise to rob Singh. That flew in the face of the verdict of the jury. Rather, Drummond should have been sentenced on his basis of plea and Rafiq on his basis of plea even though they were not consistent with each other. The judge should not have strained to make findings that attempted to resurrect the prosecution’s case which had been rejected by the jury whereas, at its highest, it was the use of unreasonable force (in excess of that required for self defence) followed by an opportunistic theft. In any event, the discount for the plea (which had been offered prior to the first trial) should have been greater than 16%.

For the Crown, Mr Lewis Q.C. argued that the judge had honoured the verdicts of the jury: the specific allegation of which the appellants had been acquitted was that the defendants had taken the metal bar from Drummond’s home to the scene and reached an agreement (together with Glover) to use it to rob the deceased prior to leaving Glover’s car. In fact, each defendant had accepted that the bar had been taken to the scene (albeit picked up just before the attack); it had been used repeatedly to strike the deceased and, thereafter, when he was defenceless, the deceased had been robbed of his personal possessions. Given that there was no threat or use of force in order to steal, however, in our judgment, the highest that the admissions can be put is that the personal possessions of the deceased had been stolen at a time when he was affected by the blows to his head.

In our judgment, however restricted the factual basis on which the Crown placed the allegation of conspiracy to rob (or the agreed fact that the judge left that allegation to the jury as being dependent on a finding that the metal pole had been taken from Caerphilly), the judge could not pass sentence affected in any way by a decision (however late it was made) that Saghir Singh should be robbed. Considered on its own, his reference to “the pretext of making a drug purchase ... but in reality the intention of taking his money” gives cause for concern that the judge’s analysis could have been inconsistent with the acquittal, but he went on to make clear that he was sentencing on a basis that “properly reflects both the evidence and the jury’s verdict”. In other words, taking his sentencing remarks as a whole, he was sentencing for manslaughter and manslaughter alone.

More difficult is the judge’s reference to the guideline issued by the Sentencing Guidelines Council for robbery although he was obviously using it analogously: robbery does not lead to loss of life and manslaughter does not necessarily involve robbery. In our judgment, he would have been better considering the decisions of this court on involuntary manslaughter and seeking to apply those to the facts of this case (without reference to the purpose or the reason for the confrontation). In the circumstances, we intend to consider the appropriate sentence afresh.

That is not to say that the judge’s observations as to the facts (save for the purpose of the confrontation) should not be determinative of the approach: we reject the suggestion that the judge should have sentenced each man on the basis of his plea, each blaming the other and utterly inconsistent. Judge Curran had heard the trial and formed the view (which it is not suggested was unjustified by the evidence) that they had both been “strangers to the truth throughout the trial”.

Similarly, the judge was entitled to treat the two men as involved in a joint enterprise without distinction in their culpability. Drummond had specifically been brought because he was “the biggest and strongest of the group with something of a reputation for violence”. On the other hand, he only came into the venture (whatever it was) that had been hatched by Rafiq (perhaps with others) and was the instrument used to attack the deceased.

It is trite to say that sentences for involuntary manslaughter embrace a wide range of criminality. In our judgment, it is not helpful (as was submitted should be the approach in Carter [2012] EWCA 1287) to argue that the starting point should be the sentence for causing grievous bodily harm contrary to s. 20 of the Offences against the Person Act 1861 (with a maximum of 5 years) uplifted to reflect death: the maximum for involuntary manslaughter remains life imprisonment. Equally, there is no arithmetical connection between the sentence for manslaughter and that for murder given that if the appellants had been convicted of murder, the sentence, pursuant to Schedule 21 of the Criminal Justice Act 2003, would have been life imprisonment with a minimum term sentence of no less than 15 years and probably, given the aggravating features, nearer 20 years (being the equivalent of a determinate term of 30-40 years).

The starting point must be s. 143(1) of the 2003 Act which focusses on the very real significance of the consequences of an offence. It provides:

As the Lord Chief Justice observed in R v Appleby and other cases [2010] 2 Cr App R (S) 46, [2009] EWCA Crim 2693 (at para. 15), in relation to manslaughter, “the culpability may be relatively low, but the harm caused is always at the highest level”. Reference was made to a very large number of cases of sentences passed for involuntary manslaughter to which (as the judgment makes clear) it is no longer helpful to refer. Lord Judge went on (at para. 22):

The cases heard together with Appleby include Bryan and Roberts, when sentences of 3 years and 18 months (which had been served at the time of the Reference) were increased to 5 years and 3½ years with an allowance for double jeopardy in circumstances where the two offenders of prior good character had become involved in an altercation started by the deceased. Thereafter, they searched out the deceased and Bryan twice punched him to the head causing him to fall to the ground as a result of which he suffered a fatal fracture to his skull.

Cowles and Cowles was another incident of violence in public, in which two brothers of 20 and 21, effectively of good character with positive character references, pleaded guilty to affray and manslaughter; one also admitted assault occasioning actual bodily harm. In the street, they subjected a small family group to verbal abuse: there was a confrontation and Ben Cowles assaulted the male; another group sought to intervene, not looking for a fight, but were then subjected to violence. One of the group was punched to the face and fell to the ground; when he got up he received another fierce blow to the head and “he went down, effectively pole axed and never got up again”. Sentences of 7 years imprisonment (with concurrent terms for the other offences) were upheld as “certainly not wrong in principle and ... not excessive”.

None of these cases involved the use of a weapon which, on any showing, is a seriously aggravating feature, potentially demonstrating a degree of preparation (even if picked up only a short time before) and a willingness to risk (even without intending to cause) serious bodily injury. An example of such a case was Preddie and Preddie [2007] EWCA Crim 1962, decided before Appleby and thus without the guidance there set out. Sentences of 8 years detention after convictions for manslaughter were upheld on two brothers aged 12 and 13 after they confronted a ten year old boy who was fatally stabbed in the leg with a broken beer bottle shard the availability of which the judge accepted was opportunistic in the sense that the bottle was broken at the scene before the incident and not by anyone involved. In the present case picking up and using the metal bar not once but three times was a more serious use of a weapon.

The violence in Preddie and Preddie was said to be bullying street violence even if there was no further underlying motive. Furthermore, the victim was left to die in circumstances when it must have been apparent that he had suffered serious injury: in this case, the victim managed to make his way home but that he had been seriously injured could not be in question and, rather than help him, the appellants stole his property.

The main mitigating factor was the very young age of the Preddie brothers at the time of the incident. Latham LJ observed (at para. 10):

Those words apply equally to this case where the aggravating features are more serious. As to the harm caused, as the Lord Chief Justice observed, it is at the highest level. Culpability in this case is also high. The deceased was attacked with a weapon; the metal bar or pole cannot be considered other than as an extremely dangerous weapon from which it could reasonably be foreseen (even if not intended) that serious harm would be caused. The possessions of the deceased, while he was senseless on the ground and unable to resist, were rifled; he was then left without a thought for the injuries that he had sustained.

Ignoring entirely the motive for the attack, a sentence of 12 years imprisonment after a trial was eminently deserved: albeit against a different factual background, a similar sentence was passed on an offender of positive good character who stabbed the partner of his former girlfriend in a public street at night and fled without calling an ambulance (Bishop [2012] 1 Cr App R (S) 13, [2011] EWCA Crim 1225). Had the motive of robbery been proved, a higher starting point would have been justified. As to the discount for the plea, offered prior to the first trial, the basis on which that plea was offered was rejected by the judge who, having heard the trials, was fully entitled to reach that conclusion: we reject the submission that the fact of the offer entitled the defendants to credit at the highest level. A reduction of the sentence to 10 years was entirely appropriate.

In the circumstances, albeit for reasons different to those advanced by the judge, we have come to the conclusion that this sentence is neither wrong in principle nor manifestly excessive. These appeals are dismissed.

On 27 October 2012, in the Crown Court at Preston, Asif Gani Firfire and Yasir Latif pleaded guilty, on re-arraignment, to conspiracy to handle stolen goods. On 27 November 2012, they were sentenced to 4 years’ imprisonment and 2 years 10 months imprisonment respectively. Their applications for leave to appeal against sentence have been referred to the full court by the Registrar.

The case involved a substantial conspiracy to handle stolen high value vehicles, vehicle shells and vehicle parts. Investigations commenced in 2009 when police officers conducted covert surveillance in Hutton Street, Blackburn. Firfire and four unknown men were video-recorded moving vehicles in the middle of the night in and out of a unit at the rear of 4 Hutton Street; no action was then taken but this led to a further police operation between January and March 2011involving the lock up unit and two garages, side by side, near where Firfire lived. Vehicles, shells and parts were seen to be moved in and out of the premises, often late at night and into the early hours of the morning.

At the beginning of the investigation, a stolen BMW motor car was seen in the car park opposite the lock up garage with false number plates; it was blocked with a vehicle transporter used by the Firfire family and, when examined, was found to contain a white paper suit in a bag which bore Latif’s fingerprints: criminal involvement in the BMW was not pursued but it was clearly relevant to the subsequent execution of search warrants at the Hutton Street unit and the two garages.

What was revealed were premises described as ‘chock a block’ with vehicle parts including a complete BMW vehicle: it was estimated that the parts had come from 60-70 different stolen vehicles. The police identified 34 separate vehicles taken during burglaries (where car keys were stolen) and robberies across the north west of England from 2005 but mainly in 2009 and 2010; many parts could not be traced. False number plates were recovered from all three garages.

Firfire arrived at the Hutton Street premises during the search: he accepted that he was responsible for the property in the unit. When interviewed in March 2011, he explained that he had only rented the premises from January 2011 and had no knowledge that the property was stolen having purchased a job lot of second hand vehicle spares for some £6,000 from a man at a nearby unit (who could not be traced based on the minimal details which Firfire had supplied). Initially, there was some confirmation of the date from which the premises had been let: it was provided by Basharat Ahmed. In a later statement, however, Ahmed admitted that this confirmation was untrue and that the premises had been rented from mid-2009: he said that Firfire had contacted him after his own arrest and told him that if he was contacted by the police, he should give the January 2011 date. Worried for his family, Ahmed had therefore lied in his first statement.

In June 2011, the home of Firfire was searched. Officers found two service booklets from two Vauxhall Astra vehicles that had been stolen in September and October 2010. In a storage cabinet in one of the bedrooms, there was found a holdall with £29,460 in cash along with a handwritten ledger recording monies going in and out. Latif’s fingerprints were found on a bag that contained some of the money. Outside Firfire’s home was a Ford Escort van, known to be used by his family. In the rear were a number of car parts including a VW engine management system, a computer part that came from a VW golf stolen in Blackburn in October 2010. When interviewed a second time, Firfire made no comment but suggested that the £29,460 might belong to his mother: when considered alongside the ledger, the Crown rejected that explanation.

Having regard to the presence of his fingerprints on the bag found in the BMW containing the white paper suit and on a bag containing some of the money, in August 2011, Latif was arrested and his home was searched. When interviewed, he also declined to answer any questions although a phone number was given to the police should they wish to contact him.

Enquiries continued and moved to the sale of car parts through eBay when it came to light that Latif was using eBay in an attempt to sell two Audi RS4 engines. The contact number was the same as that which the police had been given; a further contact number was also traced to him. Officers then pretended to be interested in buying the two engines and sent messages to the contact numbers. At a meeting in Blackburn on 22 August 2011, Firfire and Latif turned up with the two engines in the back of their van: they were arrested. Both engines had been stolen, the first in Leeds in 2009, the second in Rossendale Valley in 2010.

The address where Latif stayed with his girlfriend was also searched. Officers recovered a number of car radios, two of which were proved to have come from vehicles stolen from Glossop in 2011 and Blackburn in February 2011. The original number plate for one of those vehicles was among the number plates found in one of the garages. Again, when interviewed, he made no comment to all questions.

Latif’s bank records revealed that he had received a £50 deposit on 13 June 1011 with an annotation that it related to a R32 engine deposit. That was traced to a Mr Challinor who provided a statement to the effect that he had gone to Blackburn in June 2011 to buy an R32 engine which had been advertised on eBay; he had bought the engine and the payment was the deposit. The engine (which Mr Challinor still had) was traced to a VW Golf stolen on 20 November 2010 from an address in Leeds.

Both men entered bases of plea (the copy in the papers from Firfire being unsigned, Latif’s being signed by him, his solicitor and counsel). Essentially, they do not take issue with the prosecution case but do no more than assert the defence case. Firfire contended that his business was a legitimate going concern which he had started as a sole trader in 1998, trading in scrap metal car parts moving into trade in cars and car parts in about 2008. In about Autumn 2009, he was approached by a third party asking whether he was prepared to purchase a considerable consignment of car parts. He agreed not then being aware that some (which formed part of the prosecution case) had been stolen. He accepted that “over a period of time he formed the necessary intent to plead guilty to the offence because of the quantity and low price he was to pay for these items”. He was not prepared to name any supplier of the goods that he had purchased, both he and his family having since been threatened.

Firfire asserted that the vast majority of the car parts he traded were legitimate but accepted that “over a period of at least 9 months he received stolen car parts from at least 20 separate cars that had been stolen with the requisite criminal intention”: they were purchased at an undervalue and resold cheaply on the open market; he was not involved in the creation of false paperwork. He believed that he had been unjustly enriched in the sum of less than £50,000 although he recognised that the value of the cars from which parts were received was in excess of £200,000. He had not had a lavish lifestyle and had offered to plead guilty to 20 substantive counts.

The basis of Latif’s plea was that he was not responsible for any premises but had “obtained purchased car parts” from Firfire, believing them to be stolen, namely two Audi RS2 engines, one other engine and two stereo systems. They came from five different cars; one of the stereos came from a car whose number plates were found in one of the garages. He was not involved in receiving whole cars, or cutting them up; he had a legitimate business selling car parts, in his own name, through eBay supported by a paypal account and his mobile telephone. The basis of plea asserts that “he was involved to a much lesser extent than his co-accused”.

When opening the case, the Crown accepted Firfire’s involvement with at least 20 cars with a value between £200,000 and £300,000 but, on the basis of the evidence of his involvement in 2009, moving car parts in the middle of the night did not accept that it was limited to a nine month period. In relation to Latif, the prosecution accepted that he was involved, between January 2011 and August 2011, with a maximum of five cars valued at £150,000.

Turning to their antecedents, Firfire is 35 years of age. He has 12 previous convictions for 33 offences including burglary (in 2009), and handling stolen goods (in 1995 and 2000); when convicted of the second of these offences, he was also convicted of blackmail (for which he received, respectively, 6 months and 18 months imprisonment consecutive). There was a gap in his record between 2000 and 2008. A pre-sentence report indicated that most of his offending related to driving offences but noted that he claimed to be unable to recall more information about the offences of handling stolen goods; he failed to take full responsibility for the serious offending, explaining his involvement in terms inconsistent with the sentences he received. He provided four references although his councillor, said to have known him for 10 years and his family for 30 years was unaware that he had previously been in trouble with the law.

Latif had 9 previous convictions for 14 offences none of which involved dishonesty. He had once been sentenced to a total term of 8 months imprisonment. In his case, the pre-sentence report expressed concern that he accepted some responsibility for his own behaviour but sought to minimise his role: given the period of the operation, had he not been arrested, the offending would have continued. He was married with two young children; his wife would struggle to cope alone.

When passing sentence, the Recorder made clear the gravity of the highly organised and large scale conspiracy (involving others not apprehended) but encompassing the burglary of houses and the theft of some 60-70 motor vehicles 34 of which had been identified. Having been stolen, expensive cars were taken to premises connected principally with Firfire where they would be dismantled and sold through various outlets including the internet. The total value of the cars involved in the greater conspiracy over a period of two years was between £½ million and £1 million.

Firfire was involved with some breaking of the cars; both were involved in handling and distribution of car parts. Firfire admitted involvement, over a period of at least 9 months with at least 20 cars valued between £200,000 and £300,000; Latif, over a period of 8 months, with five cars or parts valued at over £150,000. Having regard to the guidelines in Webbe [2002] 1 Cr App R (S) 82, [2001] EWCA Crim 1217, the antecedents, references and mitigation, the starting point for Firfire was 5 years’ imprisonment and that for Latif 3½ years: both would be reduced by 20% to give credit for the guilty plea. Thus, the sentences of 4 years and 2 years 10 months respectively were passed.

On behalf of Firfire, no complaint is made about the basis on which sentence was passed: two issued raised by the Recorder were discussed and resolved without recourse to a Newton hearing. The simple point made with effect by Mr Brennand is that the sentence for a 34 year old man with a modest record and positive mitigation for being part of a conspiracy in which he gained no more than £50,000 from the handing of property valued at between £200,000 and £300,000 over a period of at least nine months was excessive.

In Webbe (supra), Rose LJ analysed the advice of the Sentencing Advisory Panel and identified (at para. 20) aggravating features including the high value of goods to the loser, the fact that the goods were the proceeds of a domestic burglary (which, we add, includes theft of car keys in a burglary thus permitting the car to the stolen), sophistication in relation to the handling and the high level of profit. He went on (at para. 30):

In our judgment, bearing in mind that Firfire pleaded guilty to participation in a conspiracy which he must have realised was far reaching and both the extent of his involvement and profit, this case both came within the upper value bracket and bore the hallmarks of a professional operation: a sentence of 5 years’ imprisonment, prior to discount for plea, could not, under any circumstances, be characterised as wrong in principle or manifestly excessive. Mr Brennand rightly abandons a ground of appeal concerned with the adequacy of the discount for guilty plea (entered after the trial date had been set) of 20%. In the circumstances, this application for leave to appeal is refused.

Turning to Latif, Mr Hind argues that the Recorder effectively ignored the basis of plea and the fact that Latif was not involved in receiving whole cars or cutting them up to sell parts; too much emphasis was placed on the value of the whole cars whereas the parts which he received was less than £5,000. It is contended that he also gave insufficient weight to Latif’s personal circumstances.

Mr Lewis Q.C. recognises that although Latif’s dishonesty encompassed parts from 5 cars, the figure of £150,000 cannot be said to represent the gravity of his offending and may, in any event, have been erroneous even in relation to the value of the cars. On the other hand, he submitted that Latif was not being sentenced simply for handling five stolen car parts but for participation in a far wider criminal enterprise for which he bore some responsibility: as Sir Igor Judge P said in Attorney General’s Reference Nos. 52-53 (R v. Toth and Rance) [2006] EWCA Crim 2571 (at para. 9):

Although the professional operation in which Latif involved himself does underline the greater gravity of his offending (and it is of significance that the writer of the pre-sentence report referred to the likelihood of his offending continuing had he not been arrested), in our judgment, there is force in Mr Hind’s point that insufficient distinction has been drawn between his role and that of Firfire: the starting point in his case should have been 2½ years. Giving the same credit for plea after the trial date had been set, the sentence should have been 2 years’ imprisonment. In his case, leave to appeal is granted and his appeal is allowed to the extent of reducing the sentence of 2 years 10 months imprisonment to 2 years.

We end this overly lengthy judgment as we started. Too many appeals against sentence are mounted on the basis that the Judge has failed to have any, or sufficient, regard to the basis on which a plea of guilty has been entered. In this judgment, we have sought to restate what should be familiar principles and we trust that similar clarity on the part of all involved will reduce the need for appellate intervention.