Anderson, R. v

MR JUSTICE PICKEN: The offender seeks leave to appeal against a total sentence of three years' detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 for an offence of conspiracy to rob, his application for leave to appeal against sentence having been referred to the full court by the Registrar.

On 6th January 2017 at Birmingham Crown Court, the offender changed his plea to guilty for the robbery offence and was subsequently, on 5th May 2017, sentenced as we have described by His Honour Judge Thomas QC. The offender's co-accused Deraj Meade, who like the offender was 15 at the time of sentence, also pleaded guilty to the conspiracy to rob offence, along with offences of possession of an imitation firearm with intent to commit robbery and dangerous driving. He was sentenced to a total of five years' detention under section 91. Christopher Clarke, who was 16 at the time of sentence, Josiah Frederick, 17 when sentenced, and Shaheim Walker, another who was 15 when sentenced, changed their pleas for the conspiracy to rob offence and were sentenced to a two year detention and training order, an eight month detention and training order and a six month detention and training order respectively. Another co-accused Orion Daley, 16 when sentenced, also pleaded guilty to the conspiracy to rob offence and was sentenced to an eight month detention and training order.

The conspiracy involved a series of 13 linked offences of robbery committed between 6th September 2016 and 5th October 2016. These were all wrapped up in the single count of conspiracy to rob. The conspiracy came to an end after a number of arrests were made by the police.

The six defendants sentenced were involved in various of the 13 offences, although Meade was involved in all 13 and the offender in seven. There were others involved as well.

The offender committed offences 2, 3 and 5 with Meade, and having been arrested he went on to commit offences 9, 10, 11 and 12 whilst on bail, committing those offences with Meade and Daley. Meade committed offence 1 with Clarke, offence 4 with Clarke and Frederick and offences 6 and 7 with Walker, although Frederick accepted using stolen cards and Clarke accepted being in the stolen car. Offence 8 was committed by Meade with Frederick. During the thirteenth and most serious robbery committed by Meade alone, a firearm was produced and used.

The offender and his co-accused were linked in a number of ways to the conspiracy. CCTV footage put them at the scene of some of the offences. Stolen bank cards were used. Arrests in or on vehicles stolen from the offences were made. The phones seized allowed the police to identify a WhatsApp group in which members of the gang talked in considerable detail in gang vernacular about the robberies which they had committed and were planning to commit.

Turning to the offences committed by the offender specifically and starting with offence 2, at about 10 pm, and so 3 hours or so after offence 1 had been committed on 7th September 2016, the complainant Jack Menear was on his silver Piaggio moped with his friend Josh Birchall. They both pulled up outside a Co-op supermarket and a dark-coloured Volkswagen Polo, stolen in offence 1, pulled up beside them. The back seat passenger was about 15 or 16 years old and was wearing a black face mask. He got out of the car and shouted "Oi". Jack Menear and Josh Birchall realised that something was wrong and, whilst Josh Birchall was able to get away, Jack Menear was about to ride off when his bike was grabbed from behind and he was hit hard on his right shoulder. The person who was pulling his bike managed to pull him into a tree causing the bike to go up in the air and Jack Menear to fall off into the tree. The bike landed on the ground. The male with the mask tried to pick the bike up but it was too heavy. Jack Menear got up and one of the males threatened him with a hammer, possibly also stolen during the course of offence 1. Another male got out of the stolen Polo and tried to pick up the bike. Jack Menear ran off and hid behind a wall in somebody's garden. The car pursued him at speed and pulled up the driveway. The front passenger shouted at him "What end are you from? Jump in blood?" Jack Menear ran back towards the Co-op and two masked males got out of the car and began chasing him. They were gaining on him. He stopped and turned around. One was holding a claw hammer. The other was holding a knife with about a six inch blade. The one with the hammer said: "Give me your helmet" and then hit Mr Menear on the left elbow with the head of the hammer. Mr Menear took off his helmet and handed it to him. The male told him to jump into the car but Mr Menear was able to run off.

He returned to find his bike valued at £1,200 had been stolen. He had three stitches to his left elbow, a possible fracture and bruising and swelling to his right shoulder and cuts to his right hand. His bike was used by two of the defendants, not the offender, in offence 4 and it was left at the scene. One of them was wearing a stolen helmet in offence 4. The helmet was recovered from the offender when he was arrested on 11th September 2016. Scratched onto the inside of it were the words "D Man 18" which was Meade's nickname.

As for offence 3, 15 minutes later, Masood Hussain was riding his moped which he had bought some three weeks previously for £450. It was his first day as a delivery boy for a Chinese take-away and his last delivery that night. When he returned to his moped he noticed a black Volkswagen Polo parked in the middle of the road. He put his helmet back on and went to ride off. As he did so the Polo reversed quickly towards him, missing him by about eight inches. The driver bumped into a parked car. Mr Hussain tried to get away but the driver pulled forward blocking his path.

There were five males in the car and they all had hoods pulled over their faces. The front passenger jumped out holding on to his coat with his left hand, whilst holding a knife in his right hand. The male holding the knife told Mr Hussain to "jump off before I stab you" and put his hand on his arm to get him off his bike. Mr Hussain got off the moped leaving his keys in the ignition. The male jumped on the bike.

The Polo drew up by Mr Hussain who ran off and one of the back seat passengers got out to catch him. The male on the bike told him to "hurry up, drive, drive, drive". The Polo accelerated away, followed by the stolen moped.

The moped was found by the police the next night and the offender was seen nearby with a group of males the police officers did not recognise.

Lastly, as to offence 5, on 10th September 2016 at about 7.40 pm the victim Nadir Attallah was at home. His friend's silver Vauxhall Astra was parked outside and his mobile phone was inside it. There was a knock on the front door and Mr Attallah answered it. There were about 15 males outside, some were wearing masks and gloves, four of them carried knives. They demanded that he hand over his car keys. One appeared to be the ringleader and he spoke to another gang member who spoke in Arabic to Mr Attallah to give him the keys. He refused. One of the males took the key which was on a table and went outside. Mr Attallah followed him and took the key off him and went back inside and ushered the gang out. He was then attacked. One of them took him to the floor, he was beaten to the head and body and was kicked and punched. The group left him on the floor and took the key and stole his car. Mr Attallah had an injury to his face, swelling of the neck with severe pain, an injury to his stomach and bruising to his right leg.

The Vauxhall Astra had false number plates fitted and was used in offences 6 and 7. It was recovered on 29th September 2016. Mr Attallah's mobile phone was recovered from the offender when he was arrested on 11th September 2016. After being arrested, the offender was released on police bail.

Turning to offences 9 to 12, on 24th September 2016, at 7.30 pm, a group of schoolboys noticed two males looking at them. They went into McDonald's followed by four males, some of them trying to hide from the camera, but the offender, Meade and Daley were identified on the CCTV. They followed the schoolboys out and tried to engage them in conversation. One of the offenders asked Chad Bridges (one of the schoolboys) if he had anything for him. When he said "no", the male replied "Don't lie to me". One of them stood with his hand in his waistband giving the impression that he was holding something and Chad Bridges handed over some coins. The male said "Do you want me to search you?" and patted him down. He asked him the time. Chad Bridges told him and the male said "How do you know? Are you being cheeky? Prove it and get the phone out." Chad Bridges handed his phone over, an iPhone 6. The male told him to give him his password. Chad Bridges gave it to him.

His friends were also searched and one of them tried to run off but was brought back. They all handed their phones over and their PIN codes and they were told that if they, as they put it, "snitched" on them they would be stabbed.

Chad Bridges' uncle traced his iPhone to the home address of Meade. He was arrested on 24th September 2016 and released on police bail and went on then to commit offence number 13 on 4th October 2016.

In his basis of plea in its amended form which was before the judge at the time of sentence, the offender accepted that he was part of a group that committed offences 2 and 3 and was involved in offences 5, 9, 10, 11 and 12. He stated that he did not take part in offence 8, but accepted that when several hours later he took possession of the moped taken in that robbery he knew it had been stolen.

In his sentencing remarks, the judge described a very serious spate of offending with the individual offences wrapped up in the single conspiracy charge. Offence 1 had been committed by Meade and Clarke at knife point, the judge pointed out. Offence 2 involved Meade and the offender, and involved the use of weapons on a young man in order to steal his moped causing him injuries from which he was still suffering. Offence 4 was a group attack and two men with the imitation firearm were involved. Offence 5, the judge explained, involving Meade and the offender was an attack on a man in his own home where having had his car key taken off him under acute threat, he was then gratuitously attacked, beaten to the floor, kicked and punched. Offence 6 involved a group attack and one victim had a knife held to his neck whilst the other was dragged from the car and punched and kicked. Offence 8 was committed on a woman when she was pushed off her moped. Offences 9, 10, 11 and 12 committed by Meade and the offender were offences committed whilst on bail involving four young men, one of them being 12 years old, being robbed in the street and the immense distress of one of them. Having made these observations, the judge went on to observe that the offender and Meade had a previous conviction for possession of a knife and had been made the subject of a referral order.

The judge continued by saying that he was acutely aware of the offender’s and his co-accused's ages and the consequences of custodial sentences being imposed, but he was also acutely aware that the primary function of sentences in cases involving young people was the prevention of offending wherever possible. Should the court follow counsel's request for leniency, the judge explained, it would not be performing its primary function and would give the impression that such conduct would be overlooked out of sympathy for their position. The consequences, the judge observed, needed to be made clear to avoid such events happening again.

It was accepted that there were others involved and that they had all thought the esteem they held in the group was more important than anything else in the world, including basic responsibility and morality, the judge went on to observe. He added, however, that the defendants including the offender were not children but young adults. The offending was too serious to be met in any other way than by an immediate custodial sentence. There had, the judge explained, been discussions amongst counsel and with the judge as to alternatives, specifically where they were not to impose sentences of detention under section 91 or to find a way in which the lesser sentence of a detention and training order could be made.

As for the pre-sentence report concerning this offender, this referred to the offender's association with peers known to the criminal justice system and the acquisition of offensive weapons by persons, so placing this offender at high risk of committing serious harm. The fact that he was 14 at the time of the relevant offending would have been further easily influenced by his peers, the report's author commented. To manage those risks, the report went on, the offender would need to the continue the progress that he had shown during his time awaiting sentence. He presented as polite and appeared to have managed to settle in to a new school. That had apparently helped him to grow in self confidence. He had ongoing health and emotional issues that could further be impacted on were a custodial term to be imposed and were he to be exposed to more criminally sophisticated individuals. In such circumstances, the report's author proposed the making of a youth rehabilitation order with certain requirements.

The judge in his sentencing remarks approached the matter on the basis that the offender had pleaded guilty close to the earliest possible opportunity and accordingly was due full credit. The starting point for the offender, the judge explained, was five years' custody. That was reduced to three years bearing in mind, it seems, that although the judge was not entirely clear on the point the offender's guilty plea as well as certain problems that the judge noted the offender had, which were not in the judge's assessment his fault.

In support of the application for leave to appeal, no objection is taken to the three-year sentence as such, as indeed was confirmed during the course of Mr Jones' oral submissions to us today. We consider indeed that a sentence of such a length is not in the category of excessive, still less manifestly so. Indeed, in his advice on appeal the offender's trial counsel, Mr Garcha who does not appear before us today, expressly accepted that a three-year custodial term could not be criticised as manifestly excessive, something with which, as we have just observed, Mr Jones concurs.

In his advice on appeal, Mr Garcha nonetheless sought to qualify that acceptance by referring to the objection which was taken in that advice and in the grounds which are before the court. That objection is that, despite it being so Mr Garcha suggested, the judge's clear intention that bail having been sought and refused on 21st October 2016, the time that the offender had spent remanded to the care of the local authority before sentence should count towards sentence, the court was allowed to fall into error in understanding that such a period would count towards sentence. Essentially, Mr Garcha suggested, the judge indicated that he expected that the effect of the sentence which he was imposing would be that the offender would spend about 12 months in custody on top of the period of time (some six months or perhaps longer) which the offender had already spent in local authority care.

Pausing there, it emerged during the course of Mr Jones' submissions to us today that the position is slightly more nuanced in terms of the offender's accommodation in the lead-up to the sentencing hearing. Specifically, although the impression which has hitherto been given is that the offender spent the entirety of his time in local authority accommodation, in fact it emerges that the offender spent 14 days in youth detention accommodation between 7th and 21st October 2016 and thereafter some 28 weeks in local authority accommodation, leading up to the sentencing hearing.

We return to this matter in our concluding remarks. For the present our focus is on the time spent by the offender not in youth detention accommodation but in local authority accommodation, namely the 28 weeks which Mr Jones has described as having been spent in that accommodation.

It was only much later, too late to allow the judge to make any correction to the sentence, that it came to be appreciated that the time spent by the offender in local authority care in the lead-up to the sentencing hearing does not count towards the sentence which the offender received at that hearing. Again, pausing there, we were shown for the first time today an order apparently made by the Crown Court in Birmingham, although somewhat oddly dated 5th May 2017 (in other words, the day that sentence was passed by the judge on the offender), which describes under the heading "Additional notes" the following:

In the circumstances, we are inclined to consider that we should take no account of the order which Mr Jones has shown us. In any event, we are somewhat doubtful as to not just the provenance but the jurisdiction which would have laid behind the making of such an order.

Returning to the statutory position, time spent in local authority care does not equate to being remanded in custody as defined in section 242(2)(b) of the Criminal Justice Act 2003, which refers, albeit not in its original form but after subsequent amendments, to being "remanded to youth detention accommodation under section 91(4) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012".

Section 91(4) of the 2012 Act, provides (where relevant) as follows:

It follows that in the present case, since the offender was remanded not under section 91(4) but under section 91(3) of the 2012 Act and in accordance with section 92, the time which he spent in the care of the local authority (the 28 weeks to which we have referred) does not count and does not fall to be deducted from his sentence.

Although not strictly relevant, since all that matters is what the relevant statutory provisions actually state, it seems that the likely rationale for the different approach is that youth detention accommodation (as defined) entails an offender being kept in a secure environment akin to a remand in custody whereas local authority accommodation is not necessarily secure.

We should mention, really only out of completeness, that, although the grounds of appeal prepared by Mr Garcha in the present case appear to suggest that prior to the amendments of section 242 of the 2003 Act brought about by the 2012 Act, a period of remand to local authority accommodation would have counted towards sentence, we are doubtful that this is right since section 242(2)(b) in its previous guise referred to an offender being "remanded or committed to local authority accommodation under section 23 of the Children and Young Persons Act 1969 ... and kept in secure accommodation or detained in a secure training centre, pursuant to arrangements under subsection (7)(a) of that section..." There was, in other words, under that previous statutory framework an added requirement that the offender should be not only kept in local authority accommodation, but additionally "kept in secure accommodation", not therefore meaning that he or she should be in local authority accommodation.

Be that as it may, in addressing the current statutory position, it is clear that the time which the offender spent in local authority accommodation (the 28 weeks which Mr Jones has described) does not count towards sentence. It follows that, if the judge intended that time should count, then he was mistaken to consider that it did. It is for this reason that leave to appeal is sought, along with an application for a time extension amounting to some 136 days. It is pointed out in the case of the latter that the misunderstanding which has arisen is no fault of the offender's. In the circumstances, we are clear that it is appropriate that the time extension sought should be granted. We are clear also that leave should, in the circumstances, be granted.

It does not necessarily follow, however, that the appeal should be allowed. We say this for two reasons. First, although we do not mean to doubt what Mr Garcha has to say about his wrongly telling the judge at the time of sentence that time would count as a matter of the applicable statutory provisions, nonetheless we have not seen any indication in the judge's sentencing remarks that this is either what the judge was told by Mr Garcha or that this is what the judge himself had in mind should be the position. Not only do we have no transcript showing any exchange of the sort described by Mr Garcha, but the transcript which we do have, namely the sentencing remarks of the judge, says nothing to indicate that the judge considered that time should count. On the contrary, whereas in the case of Meade the judge referred in terms to time spent in custody counting towards sentence (see page 4H of the transcript) in the case of the offender, namely Anderson, the judge stated that he should "serve, I expect, one-half" (see page 5B) and so rather suggesting the opposite. Indeed, we note also that the judge went on, after dealing with the offender, to refer when sentencing Clarke to time served by him as not counting towards his sentence. Clearly, the judge therefore had in mind such matters. The fact that he made no mention of time served in the offender's case rather, therefore, points in the opposite direction to that suggested by Mr Garcha in his advice on appeal and by Mr Jones before us today.

Furthermore, although Mr Garcha in his advice on appeal described the judge as having expressed sympathy when the matter came back before him in September 2017 when, as we have mentioned, he was asked to revise his sentence, but declined owing to the lateness of the application, we have seen nothing which shows that this was the case and so that the judge did indeed intend at the outset that the time spent in local authority care should count. We have already dealt with the order somewhat curiously dated 5th May 2017 which Mr Jones handed up during the course of the hearing. We need say no more about that. Even if it were to be assumed, however, that this was the judge's intention, as Mr Garcha and Mr Jones would have it, it does not seem to us to follow that the appeal should be allowed. If time spent in local authority care does not count under the applicable statutory provisions, then it does not count regardless of what the judge and Mr Garcha might wrongly have thought was the position. This, then, is our second reason for saying that it does not necessarily follow that the offender's appeal should be allowed. It is a freestanding reason which does not depend on the first reason. Put differently, even if the judge's intention was that time should count, that is not a reason why the appeal should be allowed.

We acknowledge that if in his sentencing remarks the judge had expressly led the offender to believe that time would count the position might (and we stress might) be different. That is not however the position in the present case since, as we have explained, the judge said no such thing and if, anything, appears to have said the opposite. Even then we are bound to observe that the authorities would not really have assisted the offender. This is demonstrated by the cases which have dealt with the analogous position where there have been incorrect pronouncements of release provisions. Thus in R v Giga [2008] EWCA Crim. 703, [2008] 2 Cr.App.R (S) 112, a case in which the judge sentenced the defendant to six years' custody and explained that the defendant would serve half of his sentence when actually he would serve two-thirds, it was decided by the Court of Appeal that there was nothing in the judge's remarks to suggest that he was determining the correct sentence with his mind primarily directed to the question of release. Accordingly, no change was made to the sentence on appeal. Specifically Moore-Bick LJ had this to say at paragraphs 15 to 19:

We are unable to detect from the material which we have seen anything which would justify a different conclusion to that reached by the Court of Appeal in the Giga case. We therefore decline to accede to Mr Garcha's submission, echoed today by Mr Jones, based on the suggested change brought about by the 2012 Act, a change which, in any event, for the reasons we have given, we do not consider is as marked as has been suggested.

The single point raised on this appeal accordingly does not meet with general success, by which we mean success in relation to the 28 weeks which was spent by the offender in local authority accommodation in the lead up to his sentencing hearing. It does meet with success, albeit this is not how the point has until today been put, in relation to the 14 days which the offender initially spent not in local authority accommodation but in youth detention accommodation. In relation to those 14 days, for the reasons which we have explained, the statutory provisions currently applicable are indeed engaged. Credit therefore should, indeed, be given in respect of that 14 day period but not otherwise.

There is nonetheless another point which, although not raised by Mr Garcha in support of the appeal, was raised by Mr Jones today, the point having originated from the Registrar. This point does seem to us to have merit and indeed Mr Bermingham on behalf of the prosecution does not seek to suggest otherwise. This is that, during the offender's time in local authority care awaiting sentence (and we make it clear that we refer here to the 28 weeks spent in local authority care, rather than the 14 days spent in youth detention accommodation which preceded his time in local authority care), the offender was apparently subject to an electronically monitored curfew between 8.00 pm and 6.00 am each day. In such circumstances since, had he been subject to bail (which the offender was not because bail was refused and he was instead remanded into local authority care), the offender would have been entitled to a direction pursuant to section 240A of the 2003 Act that half of the time spent subject to a qualifying curfew be credited against his sentence. It follows that this should be the position in this case also. This is what was decided in R v D and H [2016] EWCA Crim. 1807 in which Dingemans J stated as follows at paragraph 10: